
    Pat Jrs., Inc., Appellant, v. Frank Shapiro, Individually and Doing Business as Frank Shapiro Sportswear, Respondent.
    Supreme Court, Appellate Term, First Department,
    December 17, 1959.
    
      
      Samuel Schaeffer and Bernard 1. Weinstein for appellant.
    
      Sidney S. Levine for respondent.
   Per Curiam.

The court erred in setting the case down for trial for a day certain as defendant’s answer had been stricken out on a contested motion and remained stricken out on defendant’s application for reargument and there was no appeal. The defendant therefore could not seek such relief as would restore the answer and the cause as a contested issue. Moreover, the defendant failed to exercise due diligence in moving to open his default and for the setting aside of the judgment entered herein.

The order should be reversed, with $10 costs, and motion denied.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Order reversed, etc.  