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S. JEROME LEVEY v. BERT E. PICOT (07/01/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 1, 1968

S. JEROME LEVEY, APPELLANT,
v.
BERT E. PICOT, RESPONDENT

Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

In an action to recover upon a contract and an account stated, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated November 27, 1967, as, upon reargument, adhered to the original decision granting defendant's motion to open his default in answering the complaint and vacating a default judgment in plaintiff's favor. Order modified, on the law and the facts, by (1) amending the second and third decretal paragraphs so as to provide therein that the vacatur of the judgment is subject to the exception that the judgment shall only stand as security pending final disposition of the action; and (2) adding a provision thereto that the vacatur of the judgment is subject to the condition that defendant pay plaintiff's costs of $57.50, as taxed in the default judgment, upon or prior to service of an answer to the complaint. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to appellant. The time of defendant to answer the complaint is extended until 20 days after entry of the order hereon (cf. Heitman v. Slatkin, 28 A.D.2d 719).

19680701

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