
    Auto Lighter Company, Respondent, v. Wicks, Hughes & Company, Appellant.
    First Department,
    June 15, 1906.
    Practice—judgment by default opened when due service of answer by mail not contradicted — terms improper under such circumstances.
    On an application to open a judgment taken by default on the ground of the failure of the defendant to answer, when the defendant shows without contradiction that he made due and timely service of an answer by mail, the default is properly opened.
    Under such circumstances the court should not impose conditions that the defendant accept short notice of trial and that the case be put upon the short cause calendar.
    Appeal by the defendant, Wicks, Hughes & Company, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of March, 1906, as imposes a condition upon granting a motion to open the defendant’s default.
    
      
      Benjamin Marcus [George M. Speaker, attorney], for the appellant.
    
      Louis Scheuer, for the respondent.
   Per Curiam :

This is an appeal from part of an order made upon a motion vacating a judgment taken by default for failure to answer in time.

It appears from the defendant’s affidavits, no affidavits having been filed by the plaintiff, that the summons and complaint were served on the 23d day of January, 1906 ; that a duly verified answer, properly inclosed and sealed in a post-paid wrapper, ivas deposited in' the post office in the city of Utica on the 12th day of February, 1906, before six o’clock in the afternoon, directed to plaintiff’s attorney in the city of Hew York at the address designated by said attorney on the summons and complaint. The said answer was not returned and no notice of any sort, no application for judgment and no notice of entry of judgment was served upon defendant’s attorney, but a judgment was docketed in the county of Hew York on the 14tli day of February, 1906, as for failure to answer. The due mailing of the answer being made to appear and no affidavits denying the same having been submitted to the court, it is apparent that the entry of judgment by default was premature and unauthorized, and that the default was properly set aside. The court, however, imposed conditions upon the opening of the said default, to wit, that defendant should accept five days’ notice of trial and the cause should immediately be put on the short cause calendar for trial. The court ought not to have imposed such conditions if the judgment was prematurely entered, because, if the answer was served in time, and there is nothing upon these papers to show that it was not, the defendant was entitled to all his rights, including” the opportunity to make a motion, as he had given-notice that he would, for a change of venue, to receive full notice of trial, and to oppose the motion to put the case on the short cause calendar. (Yates v. Guthrie, 119 N. Y. 420.)

The court at Trial Term, Part 2, has control over the short cause calendar, rule 5 of the rules for the regulation of the Trial Terms of the Supreme Court in the first judicial district and to regulate the calendar practice therein, requiring a notice of motion to put the case on said calendar upon affidavits, which the defendant may-answer.

Therefore, so much of the order as imposes the foregoing conditions should be stricken out, the order modified accordingly, and as modified affirmed, with ten dollars costs and disbursements to the appellant.

Present — O’Brien, P. J., Ingraham, McLaughlin, Clarke and Hohghton, JJ.

Order modified as directed in opinion, and as modified affirmed, with ten-dollars costs and disbursements to appellant. Settle order on notice.  