
    Kostas Mitzas and Others, Respondents, v. Sam Spector and Another, Appellants.
    Supreme Court, Appellate Term, First Department,
    November 6, 1925.
    Judgment — opening default — cause directed to be placed on May trial term calendar in City Court of City of New York, placed on June term calendar through plaintiffs’ inadvertence — defendants entitled to have resulting default opened without costs.
    Defendants are entitled to have the default herein opened, without payment of costs, where it appears that the cause, after a new trial had been granted, was directed, by an order, to be placed upon the May trial term calendar in the City Court of the City of New York, but by reason of the failure of plaintiffs’ counsel to file the order until after the May term had commenced, was irregularly placed, without defendants’ fault, on the June term calendar.
    Appeal by defendants from so much of an order of the City Court of the City of New York opening their default as imposes payment of costs as a condition thereto.
    
      Meyer Levy, for the appellants.
    
      Nathaniel Kopf, for the respondents.
   Per Curiam:

This cause, after a new trial had been granted, was, by an order entered April 13, 1925, directed to be placed upon the next trial calendar. For some unexplained reason plaintiff’s counsel did not present this order to the calendar clerk until May sixth. It was then placed upon the calendar for June 1, 1925, instead of the calendar May 1,1925. (See Rules of the City Court of the City of New York, rule 14.) Since it was thus irregularly upon the calendar defendants were entitled to have their resulting default opened without terms, and the order appealed from is modified accordingly.

Order modified by striking therefrom all conditions for the payment of costs, and order as so modified affirmed, with ten dollars costs and disbursements to appellants to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.  