Hornblower & Weeks-Hemphill, Noyes Inc. v. Faden , 399 N.Y.S.2d 1017 ( 1977 )

Order, Supreme Court, New York County, entered March 22, 1977, denying plaintiff-appellant’s motion for reargument and renewal of a motion that had resulted in an order of the same court, entered October 14, 1976, granting, inter alia, defendant’s motion to vacate the default judgment and order of attachment, declaring the service of the summons invalid, and directing plaintiff to pay defendant the sum of $9,359.61, unanimously modified, on the facts, without costs and without disbursements, to grant renewal and upon renewal to impose as a condition to the grant of vacatur that defendant post an undertaking in an amount to be fixed upon settlement of the order herein to be applied toward the payment of any judgment which the plaintiff may obtain in this action, and otherwise affirmed. The appeal from the order of October 14, 1976 is dismissed as academic, without costs and without disbursements. The defendant has counterclaimed against the plaintiff in an amount in excess of the vacated default judgment and Special Term has ordered the plaintiff to reply to that counterclaim. Since the defendant has no assets in this State apart from the $9,359.61 now released to him and is an out-of-State resident, the plaintiff is entitled to the protection of a bond. Settle order on notice. Concur—Murphy, P. J., Lupiano, Silverman and Lynch, JJ.