
    WILLIAM F. LETT, App’lt, v. GUARDIAN FIRE INSURANCE CO., Resp’t.
    Practice—Opening default.
    Appeal from order denying motion to open default.
    
      James M. Lyddy, for app’lt; N. B. Hoxie, for resp’t.
   Per Curiam

—Unless the plaintiff is allowed to test his right to recover in this action, he probably will not be able by reason of the lapse of time to bring and maintain another action, even if he should be entitled to recover. To avoid that result, the case is one where the default, as it has been excused, should be set aside; and the court, at special term, had the power, notwithstanding the refusal of the circuit to postpone the trial, to consider the application upon its merits and set aside the default. But it should be upon the terms that the plaintiff shall, within twenty days after notice of the order, pay the costs of the trial, the disbursements and witness fees on the trial, and the costs of opposing the motion, and without costs of this appeal. And the motion for leave to amend the complaint should be remanded to and heard by the special term.

Ordered accordingly.  