
    Edwin Storch, Appellant, v. Allstate Insurance Company, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 14, 1957.
    
      Harold S. Kohn for appellant.
    
      Asher Marcus for respondent.
   Per Curiam.

It was error to entertain the defendant’s motion for summary judgment dismissing the complaint when an inquest had already been ordered against the defendant and the defendant’s default had not been opened. The granting of the motion may not be treated as an opening of the default since the plaintiff was not on notice that the defendant sought this relief nor did the defendant’s motion papers show any-ground for opening its default.

The judgment and order should be reversed, with $10 costs, and motion denied, without prejudice to renewal after the opening of the defendant’s default.

Aurelio, J.

(dissenting). As a consequence of defendant having failed to answer the trial calendar call, the case was set down for inquest. Defendant then moved to vacate its default but the motion was denied by another Justice, without prejudice to renewal upon presentation of a proper set of papers. However, the defendant did not renew this application but instead brought on this motion for summary judgment upon the ground that plaintiff’s own bill of particulars established, as a matter of law, that he does not have a cause of action against defendant.

Section 490 of the Civil Practice Act requires “ The court or judge upon application by a plaintiff for judgment by default * * * must render the judgment to which the plaintiff is entitled ”. An inquest would reveal that plaintiff is not entitled to recover. In these circumstances it was within the province of the court to excuse the default in the process of considering and granting defendant’s motion for summary judgment. I dissent and vote to affirm the order below.

Hoestadter and Tilzer, JJ., concur in Per Curiam opinion; Aurelio, J., dissents in opinion.

Judgment and order reversed, etc.  