O'Neal v. Seifert 248 A.D. 638

Action to recover damages for personal injuries suffered by plaintiff Edna O’Neal due to a faE occasioned by a broken curb or section of a sidewalk in front of the store in premises owned by defendant Seifert, and for medical expenses and for loss of services suffered by plaintiff Alfred J. O’Neal, her husband. Order of the County Court of Nassau county denying motion of defendant Seifert to dismiss the complaints affirmed, with ten doEars costs and disbursements; order denying said defendant’s motion to vacate judgments and open her default in failing to appear on the trial of these actions reversed on the law and the facts, without costs, and the motion granted upon condition that the judgments entered stand as security until the trial of these actions and that said defendant pay to the plaintiffs $100 within five days from the entry of the order hereon, in default of which the order is affirmed, with ten doEars costs and disbursements. WhEe it is doubtful that the complaints state a cause of action against defendant Seifert, in view of the opportunity that was available to have the *639facts adduced and the matter disposed of on the merits, the order denying the motion to dismiss the complaints will not be disturbed. By reason of the frail character of the complaints, the question of whether or not this defendant is liable to these plaintiffs should be determined on a trial, and for that reason the failure of the appealing defendant to appear upon the trial, due to misunderstanding or otherwise, should be excused upon terms that will preserve the plaintiffs’ rights and reimburse them for the trouble caused by said defendant’s course of conduct, which course of conduct does not warrant the view that the default in appearing upon the trial was a willful abandonment of her rights to contest the merits of plaintiffs’ claims. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.