Vigo v. City of New York 24 A.D.2d 743

Order dated May 3, 1965, denying defendant’s motion for vacatur of an order striking the answer of the defendants Edward J. Tracey, M. D., and C. Graff, M. D., and order dated June 8, 1965, denying renewal of the motion, unanimously reversed, on the law, on the facts and in the exercise of discretion and motion granted, on condition, however, that the defendants pay to the plaintiff $30 costs and disbursements of these appeals and $250 as counsel fees; and upon further condition that the defendants Tracey and Graff submit to disclosure proceedings in a manner and at a time and place to be provided for in the order to be settled herein. In all the circumstances of this case, including the fact that defendant physicians were in the armed forces, we conclude that the application to open the default should have been granted. However, the circumstances are such as to require that the default be opened only upon defendants’ compliance with the conditions hereinabove imposed. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.