
    HERMAN v. HYMAN.
    (Supreme Court, Appellate Term.
    November 24, 1908.)
    Judgment (§ 138*)—Default—Application to Vacate.
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.
    Plaintiff's complaint was dismissed for his failure to appear, after which his default was opened on payment of $10 costs within a specified time. He failed to do this, but the case, through an error of the clerk, was placed on the calendar for trial, and, on defendant failing to appear, judgment was entered against him. Held, that defendant was entitled to have his default opened and the original judgment against plaintiff reinstated, with leave to plaintiff to have her default opened on payment of $10 costs within 10 days from the service of the new order.
    [Ed. Note.—For other cases, see Judgment, Dec. Dig. § 138.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Honna Herman against David Hyman. From a judgment for plaintiff after an inquest in the Municipal Court of New York City, and from an order denying a motion to vacate the judgment, defendant appeals.
    Reversed.
    Argued before GILDERSLEEVE, P. J., and MacEEAN and SEA-BURY, JJ.
    James, Schell & Elkus (Frederick Mellor, of counsel), for appellant.
    Charles S. Rosenthal, for respondent.
   PER CURIAM.

This is an appeal by the defendant from a judgment entered against him and from an order denying his motion to open his default. When the case was originally upon the calendar, the complaint was dismissed upon the failure of the plaintiff to appear. Subsequently the plaintiff moved to open his default, and that motion was granted upon the payment of $10 costs within the time specified. The plaintiff failed to comply with the terms of this order, and through an error of the clerk the case was restored to the calendar for trial. When the case was called, the defendant failed to appear, and judgment by default was entered against him. The defendant now appeals from this' judgment and also from the order, which was subsequently made, denying his motion to open the default which he suffered.

It is clear from the recitation of these facts that the order denying the motion to open the defendant’s default_ should be reversed and the original judgment against the plaintiff reinstated, with leave to the plaintiff to have said default opened upon the payment of $10 costs within 10 days from the service of a copy of the order entered upon this decision upon him or his attorney. The order denying the defendant’s motion to open his default is reversed, and the appeal from the judgment is dismissed.

The appeal from the judgment is dismissed without costs, and the order denying the defendant’s motion to open his default is reversed, with costs to the appellant and the original judgment against the plaintiff reinstated, with leave to the plaintiff to have said default opened upon the payment of $10 costs within 10 days from the service of a copy of the order entered upon this decision upon him or his attorney, with notice of entry thereof.  