Opinion
October 29, 1964
Order, entered on July 30, 1964, denying defendant's motion to vacate an ex parte order entered June 30, 1964 striking defendant's answer upon his default in appearing for an examination before trial, unanimously reversed, on the law, on the facts and in the exercise of discretion, on condition that within 15 days from the entry of the order hereon defendant continues the surety company bond in the sum of $5,000 conditioned on the payment of the judgment, if any, hereafter awarded the plaintiff, and pay to the plaintiff a full bill of costs including plaintiff's costs and disbursements on appeal and $250 counsel fee; or otherwise affirmed, with $30 costs and disbursements to respondent. As a matter of general policy disposition of controversies on the merits is favored. To that purpose defaults will be vacated on a proper showing of a meritorious defense, an excusable default and the absence of willfulness. ( Benadon v. Antonio, 10 A.D.2d 40, 42.) Defendant's nonappearance herein strongly suggests purposeful conduct and accordingly we feel that the imposition of the conditions herein is indicated. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.