
    Polytemp, Inc., Respondent, v Daniel E. Sell, Appellant.
   In an action on a contract, defendant appeals (by permission) from so much of an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated October 6, 1976, as affirmed an order of the County Court, Westchester County, dated February 25, 1974, which denied a motion by defendant to vacate a default judgment entered in the County Court on December 3,1973. Order reversed insofar as appealed from, without costs or disbursements, and motion to open default granted, on condition that defendant pay the amount of $200 to the plaintiff within 20 days after service upon defendant of a copy of the order to be made hereon, together with notice of entry thereof; in the event such condition is not complied with, order affirmed, without costs or disbursements. Defendant-appellant’s papers show that he may have a meritorious defense to plaintiff’s action. He also correctly asserts that the County Court should have granted his motion for an order directing plaintiff to appoint a single attorney of record (see Matter of Kitsch v Riker Oil Co., 23 AD2d 502). However, in granting defendant’s motion in the interest of justice, this court does not condone his refusal to proceed with this case after a jury was chosen and, for that reason, has imposed a penalty upon him (see Sotcheff v French, 59 AD2d 777). Hopkins, J. P., Latham, Shapiro and Mollen, JJ., concur.  