Wellen v. Carbone ( 1974 )

In a negligence action to recover damages for personal injuries, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated October 19, 1973, as, upon reargument, (1) set the case down for trial (thus vacating defendant’s default) upon the condition of defendant’s submitting an affidavit of merits and paying to plaintiff $100 on account of $500 in costs theretofore provided for in a prior order and (2) deferred the $400 balance to abide the event of the trial. Order modified by increasing the amount of $100 to $250 and deleting the provision directing that the original amount of $500 remain in force and deferring the $400 balance to abide the event. As so modified, order affirmed insofar as appealed from, without costs. We believe that the total penalty imposed was excessive to the extent indicated herein and that it was improper to condition any part of the penalty upon the outcome of the case. Hopkins, Acting P. J., Christ, Brennan, Benjamin and Munder, JJ., concur.