Hinds v. Calamaras , 107 N.Y.S. 28 ( 1907 )

PER CURIAM.

The court below refused an application to open the default of the defendants herein in failing to appear upon the return day of the summons, alleging in its order want of power so to do. This was clearly error. Although the notice of motion, in addition to asking for the opening of the defendants’ default, asked also for the restitution of the money paid under protest by them to the marshal upon an execution theretofore issued upon the judgment, nevertheless, if we assume, without deciding, that the court below had no power to order restitution, it had ample power to open the default and set the cause down for trial. Section 253, Mun. Ct. Act (Laws 1902, p. 1562, c. 580). The moving papers presented good and sufficient reasons for excusing the defendants’ default, and nothing was shown in opposition thereto upon the hearing of the motion.

Order reversed, and new trial ordered, with costs to appellants to abide the event.