
    Frieda Szerlip, Appellant, v. Franz Baier, Respondent.
    (Supreme Court, Appellate Term,
    January, 1898.)
    District Courts — Power to open default after failure to set aside service of the summons — Terms.
    Under the Consolidation Act (Laws 1882, chap. 410, '§■ 1367, as amended by Laws of 1896, chap. 748), a justice of a District Court of the city of New York has power, after the reversal of an order vacating a judgment for .an alleged failure to serve the defendant with the summons, to open the default and allow him to plead; but where it appears that’ his motion to vacate the judgment- subjected the plaintiff to costs which have been taxed and entered, the payment of these costs should be made a condition of opening the default.
    
      Appeal by plaintiff from an order opening default made by the justice presiding in the Eifth District Court.
    A. B. Schleimer, for appellant.
    A. H. Berrick, for respondent.
   McAdam, J.

The plaintiff recovered judgment against' the defendant by default in the Fifth District Court, October 3, 1896. The defendant moved to set the judgment aside upon the ground that the summons had not been served upon him, and that the court in consequence had no jurisdiction. The justice ordered a reference as to the facts, and upon the coming in of the report the evidence was treated as the depositions of the witnesses, and after' argument the justice granted the motion and vacated the judgment, with costs. IJpon appeal the order was reversed, with costs.- 21' Misc. Rep. 331. These costs were taxed by the clerk October 21, 1897, at $73, for which the plaintiff entered .judgment.

The defendant thereafter moved to set. aside the taxation and judgment, -and by an order entered November 24, 1897, the motion was denied, with $10 costs. . 21' Misc. Rep. 692.,

After'the reversal of the order1 setting aside the judgment for nonservice of process the defendant movéd to op'en the judgment so that he might be permitted to come in and defend on the merits. The motion was granted' November 12, 1897, on payment by defendant to plaintiff of $10 costs. From this order the plaintiff has taken the present appeal. ‘ 1

Section 1367 of the Consolidation Act, -applicable to District Courts (as amended by Laws 1896, chap.. 748), provides that “ the court, or any justice holding the same, may at any time, upon motion made upon such notice as the justice may direct, open any default, and set aside, .vacate or modify any judgment entered thereon, and set the cause down for pleading, hearing or trial, as the case may require, upon such terms and conditions as the court or justice may deem proper.” Dnder this provision the justice in his discretion had power to make the order appealed from, and we find no abuse of that discretion except in reference to the terms imposed.

The defendant having previously moved to set aside the same judgment, and by his- motion -put the plaintiff to an expense of $73, the payment of this sum ought to have been imposed asi one of the conditions of opening the judgment.

The order appealed from will, therefore, be modified by directing that the motion to open the judgment be granted, and the defendant allowed to interpose an answer on the merits, on payment by the defendant to plaintiff, within five days after the service of the order to be entered hereon, of $10 motion costs and the $73 represented by the judgment of October 21, 1897; that upon such payment a trial be had at a time to be specified in the order; that said judgment stand as security; and that if said terms are not complied with within the time specified the said motion be denied.

The payment of the $10 costs imposed by the order of the Appellate Term, November 24, 1897, is not made a condition of opening the judgment, for the reason that they were awarded after the order appealed from was made, and the matter could not, therefore, have been considered by the justice below in making his order.

As modified the order appealed from will be affirmed, without costs.

Daly, P. J., and Bischope, J., concur.

Order affirmed, without costs.  