Behringer v. Turk ( 1954 )

In an action to recover damages for personal injuries, order denying appellant’s motion to restore the cause to the day calendar modified by adding the following to the first ordering paragraph immediately after the word “ denied ”; “unless plaintiff pay $165 to defendants’ attorneys and upon the making of such payment the motion is granted.” As thus modified the first ordering paragraph is affirmed, without costs; the payment to be made within ten days after the entry of the order hereon. Appeal from the second ordering paragraph dismissed, without costs. Under all the facts and circumstances, the plaintiff should not be deprived of his day in court, and the motion should have been granted upon suitable terms. Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.