
    Sigmund Fox, Respondent, v. Henry E. Fox, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1913.)
    Default — motion to open — when defendant relieved from default — appeal.
    Executions — motion to vacate — order for examination in aid of execution — appeal.
    Where on motion of plaintiff to declare an appeal from a judgment in his favor abandoned it appears that defendant’s delay in making and serving a case was because of the stenographer’s failure to furnish a copy of the minutes of the trial and the pendency of negotiations between the attorneys for a settlement, defendant should be relieved from his default and both the order declaring his appeal abandoned and the order denying his motion to open the default will be reversed, and the motion granted with an extension of ten days’ time.
    An order denying defendant’s motion to vacate an execution issued upon plaintiff’s judgment will be reversed and the motion granted.
    An order denying defendant’s motion to vacate an order for his examination in aid of said execution will be reversed and the motion granted.
    Appeals by defendant from four orders of the City Court of the city of New York.
    Blandy, Mooney & Shipman (Charles Blandy and Laurence A. Sullivan, of counsel), for appellant.
    Max Shlivek, for respondent.
   Seabury, J.

This is an appeal from four orders of the Special Term of the City Court. The first order declares the defendant’s appeal to this court from a judgment rendered against Mm abandoned. The second order denies defendant’s motion to open Ms default in failing to make and file Ms case as reqmred by law. The tMrd order denies the defendant’s motion to vacate the execution issued upon the judgment. The fourth order denies defendant’s motion to vacate the order for Ms examination in aid of execution.

If the first order was improperly made, it follows that the other orders should be reversed. This action was brought to recover a balance claimed to be due under a building contract. Upon the first trial .the plaintiff recovered a judgment, which was reversed by tMs court. 77 Misc. Rep. 100. Upon the second .trial the plaintiff again recovered a judgment. The time of the appellant to make and serve a case on appeal expired, and the plaintiff moved to declare the appeal abandoned. It appears that the appellant was delayed in making a case by reason of the failure of the stenographer to furnish a copy of the minutes of. the trial, and that the preparation of the case on appeal was further delayed by negotiations between the attorneys for a settlement which were not consummated. Under these circumstances, we think that the defendant should have been relieved from Ms default. The learned court below denied the motion to open the default on the ground that the defendant had failed to have his time to serve and file Ms case extended, not on the ground that the defendant had not excused Ms failure so to do. The fact that the defendant was in default, of itself, furmshed no ground for refusing to reheve him from Ms default. We tMnk that the interests of justice require that the order appealed from should be reversed, that the defendant should have an opportumty to present his appeal to this court. Under the circumstances, no costs will be allowed to either party.

The order declaring the appeal abandoned is, therefore, reversed.

It follows from the reversal of this order that the order denying defendant’s motion to open his default should be reversed, and that motion granted, allowing the defendant an extension of ten days ’ time.

The order denying the motion to vacate the execution should be reversed, and the motion to vacate the execution is granted.

The order denying defendant’s motion to vacate the order for his examination in aid of execution is reversed, and the motion to vacate said order is granted.

In lieu of granting costs as a condition for opening the defendant’s default the respondent will be allowed his disbursements upon these appeals.

Gut and Bijub, JJ., concur.

Orders reversed.  