SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 18, 1968
NICHOLAS VAN VALEN, APPELLANT,
JACKSON SAVAGE ET AL., RESPONDENTS
Appeal by plaintiff, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated October 20, 1967, as (1) vacated defendant Savage's defaults and reinstated his answer, (2) vacated two orders dated February 21, 1966 and March 14, 1967, respectively, which directed that said defendant's answer be stricken, and (3) directed that the action take its place on the general calendar for trial in its regular order.
Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
Order modified, on the law, the facts and in the exercise of discretion, by adding a provision conditioning the above mentioned portions of the order under review upon defendant Savage's paying plaintiff $100 for the inconvenience suffered by plaintiff's attorney. As so modified, order affirmed insofar as appealed from, with $20 costs and disbursements against defendant Savage. The payment condition must be complied with within 20 days after entry of the order hereon. The condition herewith imposed is fair and in accordance with the offer made in the affidavit of an attorney which was submitted in support of defendant Savage's motion.
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