
    Jacob Rudin, Respondent, v. Hadrian Realty Company, Inc., Appellant.
    
      Appeal — resettled order — opening default — terms.
    
    Appeal by the defendant from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 10th day of December, 1916, as resettled by an order entered on the 31st day of December, 1916, and also from an order entered on the 23d day of December, 1915.
   Jbnks, P. J.:

The plaintiff entered judgment upon the default of the defendant to appear at the Special Term for trial, and the defendant has asked and has obtained the favor of having the default opened upon terms. This appeal is in protest against such terms, which are: payment of the plaintiff’s taxable costs and disbursements, of ten dollars costs, and that the judgment stand as security. The defendant would review three orders. But admittedly the last order of December 31, 1915, is in resettlement of the order of December 9, 1916, and, therefore, the appeal from the latter order should be dismissed. (Matter of Knapp & French, Inc., 170 App. Div. 959.) The requirement that the judgment should stand as security, in addition to the payment of costs, is not infrequent. We are not inclined to any exercise of discretion counter to the Special Term, especially when the original motion papers of the defendant were not in compliance with rule 23 of the General Rules of Practice. If the defendant is anxious to dispose of the litigation and thus, if possible, avoid the judgment, the condition of the equity calendar of Kings county is such that it may have its hearing almost immediately. The said order of December 31st restored the ease to the calendar for January 10, 1916, and in ordinary course, but for this appeal, the trial of the issue would have been possible long since. We find no reason for interference with the order of December 23d, which relates to a reargument of the original motion and to the taxation of the costs. The appeals from the orders of December 9th and 23d are dismissed, without costs, and the order of December 31st is modified so that the case is restored to the next calendar of the Special Term, and as so modified it is affirmed, with ten dollars costs and disbursements. Thomas, Stapleton and Mills, JJ,, concurred; Carr, J., not voting. Appeals from orders of December 9th and 23d dismissed, without costs; order of December 31st modified so that the case is restored to the next calendar of the Special Term, and as so modified affirmed, with ten dollars costs and disbursements.  