
    SIMON v. BORDEN’S CONDENSED MILK CO.
    (Supreme Court, Appellate Term.
    November 6, 1903.)
    1. Dismissal of Action—Opening Default—Costs.
    Though plaintiff’s attorney is negligent in permitting the case to be dismissed, plaintiff may have the default opened on payment of costs and defendant’s taxable fees for witnesses for attendance in court.
    ¶ 1. See Dismissal and Nonsuit, vol. 17, Cent. Dig. § 189.
    Appeal from City Court of New York.
    Action by Emanuel Simon against Borden’s Condensed Milk Company. From an order opening a default, defendant appeals. Modified.
    Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
    F. M. Rowlette, for appellant.
    S. D. Rosenthal, for respondent.
   BLANCHARD, J.

The plaintiff’s attorney was negligent in permitting the case to be dismissed. Yet the plaintiff should have an opportunity to try the case upon the merits, and the default should be opened, but not without the imposition of costs.

The order appealed from is modified by providing for the opening of the default upon payment of $10 costs, and defendant’s taxable fees paid to witnesses for their attendance in court. The "appellant may have the disbursements of the appeal, but not costs. All concur.  