Stone v. Smith , 61 N.Y.S. 1106 ( 1899 )

O’Dwyer, J.

The defendant appeared specially herein and moved to vacate the judgment entered, upon grounds enumerated in the order to show cause. The motion was denied, but leave to answer was given upon certain conditions, and the order as entered, and which is appealed from, not only denied the motion to vacate the judgment, but also provided for leave to answer upon these conditions. The defendant did not ask to have his default opened and the provision, therefore, is beyond the subject submitted for determination by the special appearance and should not have been incorporated in the order. The denial of the motion to vacate was justified, it appearing that the order for substituted service was granted upon sufficient evidence and the judgment entered upon proof satisfactory to the court directing the entry of judgment.

It follows that the order appealed from should be modified by eliminating all provisions therein contained after the denial of the motion to vacate the judgment, with ten dollars costs, and vacating the stay granted in the order to show cause, and, as modified, affirmed, without costs.

Schuchman, J., concurs.

Order modified and, as modified, affirmed, without costs.