
    Hinz v. Starin.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Judgment—By Default —Opening—Terms.
    There was a disagreement between the attorneys for plaintiff and defendant in respect to the trial of the case, and plaintiff’s attorney brought it on for trial, and obtained a default. «Held that, while the court properly opened the default, it erred in imposing a condition requiring plaintiff’s counsel, who was regular in his practice, to try the cause upon a printed case, (prepared on a former appeal by defendant,) if he went to trial that week, and in not imposing reasonable pecuniary terms (counsel fee, etc.) upon defendant as a condition for the favor.
    Appeal from special term, Kings county.
    For the opinion on a former appeal by defendant to this court, see 3 ÍT. Y. Supp. 290.
    Argued before Barnard, P. J., and Dykman, J.
    
      Martin J. Keogh, for appellant. Wm. W. Goodrich, for respondent.
   Dykman, J.

This is an appeal from an order opening a default and setting aside an inquest taken in this action at the March circuit, in Westchester county, against the defendant, in favor of the plaintiff. There was a disagreement between the attorneys in relation to the trial of the cause, and the counsel for the plaintiff was entirely justifiable and regular in bringing the same on for trial, yet, under all the circumstances, it was wise to open the default and set aside the inquest, upon proper terms. We do not think, however, that the discretion of the court was wisely exercised in relation to the terms, first, because it obliged the counsel for plaintiff, who was regular in his practice, to try the cause upon the printed case, if he went to trial that week. That condition obliged the plaintiff to do what the presiding judge at the circuit could not require him to do when there was nothing in his conduct or position to justify the imposition of such a condition. We think, also, that pecuniary terms should have been imposed as a condition for the favor granted to the defendant. The defendant should have been required to pay $100 to the counsel for the plaintiff, $30 trial fee, and $10 for opposing the motion to open the default, and the legal disbursements for the March term of the court. The order should be modified in the respects mentioned, and, as so modified, affirmed, without costs. 
      
       Prepared on the former appeal by defendant.
     