
    Town of Ohio, Herkimer County, New York, by John Flike, Supervisor, Appellant, v. American Surety Company of New York, Defendant, and Daniel F. Strobel, Respondent.
   Order dated November 21, 1938, and entered December 28, 1938, reversed on the facts, with ten dollars costs and disbursements, and motion granted in the following respects: (1)' vacating and setting aside the order dismissing the complaint, dated September 27, 1938, and (2) restoring the action to the trial calendar, on condition that plaintiff pay the fees paid by defendant to witnesses for court attendance on September 27, 1938, and pay ten dollars costs of the motion; motion otherwise denied, reserving to the plaintiff the privilege to move over for the relief herein denied. Appeals from orders entered September 27, 1938, and October 14,1938, respectively,' dismissed, without costs, as academic, in view of the decision on the order entered December 28, 1938. Memorandum: In our opinion the record shows a situation where in the interests of justice the default should be opened. All concur. (One order dismisses the complaint on the merits, the second order denies plaintiff’s application to restore the action to the calendar; the third order denies plaintiff’s application to vacate the two previous orders.) Present — Sears, P. J., Crosby, Lewis, Cunningham, and Taylor, JJ.  