Opinion
May 21, 1957
The plaintiff on the renewal of its motion to vacate the default judgment entered dismissing its complaint made adequate explanation of the delay that prompted the denial of the original motion to open its default. In addition, plaintiff satisfactorily explained its failure to move to restore the case to the Reserve Calendar in the year that elapsed between the time it was marked "Off" the Reserve Calendar and its automatic dismissal by the clerk as provided by subdivision 2 of rule 302 of the Rules of Civil Practice. It is not disputed that the case was marked "Off" the Reserve Calendar upon the understanding that it was to be restored upon notice when letters rogatory would be returned from Brazil. It appears that these letters had not been returned when the clerk dismissed the action in 1953. The parties considered the case active as late as 1955. This is evidenced by the fact that they entered into a stipulation concerning some of the details of the return of the interrogatories. Both parties appear to be in part responsible for the overall delay and there is an adequate showing of merit on the part of the plaintiff. We conclude that the plaintiff shows circumstances that warrant the vacatur of the judgment and the opening of the default ( People ex rel. Weiss v. Boyland, 3 A.D.2d 738). Accordingly, the order of Trial Term denying plaintiff's motion for an order on additional grounds vacating the judgment is unanimously reversed, without costs, and the motion to vacate the judgment and to open the plaintiff's default and restoring the case to the calendar for trial is granted. Settle order on notice.
Concur — Breitel, J.P., Rabin, Frank and Valente, JJ.