Barkin v. Rosenbach , 55 N.Y.S. 628 ( 1899 )

Per Curiam.

On October 3, 1898, the defendant obtained, on the default of plaintiff, a judgment dismissing the complaint and giving defendant affirmative relief on his counterclaim in the sum of $60 and costs. On the following day, as appears from the return, a disposition of the case was made as follows, viz.: “ The above case being called to-day on the regular call of the calendar, on a motion to open the default, the attorney for the defendant consents to the opening of the default, and both sides agree to go to trial to-day, the counsel for the plaintiff answering ready for trial. The case being called for trial in the regular order of business of the court, the plaintiff fails to answer ready for trial, and the defendant again answers ready. The court thereupon orders that the opening of the default of this morning he vacated and that the judgment, as taken yesterday, stand.”

This ruling was irregular and the judgment cannot stand. The justice should have taken fresh proofs as to the counterclaim and rendered a fresh judgment. The judgment, having been set aside, could not be revived. See McCullum v. McClave, 1 Hilton, 140; S. C., 3 Abb. Pr. 106.

• The judgment is reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Beekman, P. J., Gildersleeve and Giegerioh, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.