#### David Berg et al., Respondents, *v.*Wilhelmina Pohl, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Municipal Court of the city of Mew York — On opening the plaintiffs’ default, conditions cannot be imposed on the defendant.

On a motion to open a default of the plaintiffs taken in the Municipal Court of the city, of New York upon the return of the summons, a justice has no power to direct a defendant to serve and file a verified answer on or before dates fixed, as the defendant is not in default and should be left free to answer or demur, or to take such other legal action as she may' be advised. .

*741Appeal by tbe defendant from an order opening tbe plaintiffs’ default made by one of tbe justices of the Municipal Court of the city of ¡New York, while presiding at the said court, borough of Manhattan, second district.

The material facts are stated in the opinion.

William J. Nicholson, for appellant.

Herman Fox, for respondents.

Giegerich, J.

• The order under review directs the payment by the plaintiffs of $5 costs on or before March 18, 1898, as a condition to the opening of their default, and “that the trial of this' ' action, if the aforesaid condition is complied with, be set down peremptorily for Wednesday, March 23d, at 10 o’clock, a. m.”

It further provides, “ that the said defendant, or her attorney, serve upon the plaintiffs’ attorney at his office, ¡No. 335 Broadway, ¡New York, a duly verified answer on or before Tuesday, March 22, 1898, at 12 o’clock, m.,.of that day, and that the original of said answer be filed in this court on or before the 23d day of March, 1898.

■ *“*Ordered, that the said defendant be permitted to amend the answer heretofore served in this court, and that such amended answer may be the answer served as aforesaid, on or before Tuesday, March 22, 1898.” The return does not contain an-answer of the defendant, nor does it make m.ention .of any having been filed. The defaifft of the plaintiffs was taken upon the return of the summons, and the dismissal of the complaint could, therefore, be had without her pleading thereto. Under these circumstances it will be assumed that no answer was filed, and that the recitals' contained in the last paragraph of the order in question are erroneous.

The trial justice erred in the directions given with respect to the service of an answer by the defendant and thus assuming to control and limit the defendant in the exercise of the rights which the law conferred upon her on the return day of the summons. She was not in fault and no conditions should have been imposed upon her. The order appealed from was made on the motion of the plaintiff excusing his default and should not have gone beyond placing him in the same position he would have occupied had he been present when the case was called, leaving the defendant *742free to plead by answer or demurrer or to take such other action,, permissible at that time, as she might be advised.

For these reasons the order appealed from should be modified by striking out all directions for the .filing of an answer, and the-service of a copy of the same, and that in lieu thereof there be-inserted *a*provision to the effect that the defendant may plead to the complaint, or take such other action, permissible at that time, as she may be advised, at a time and place to be specified in the-order, which is to be settled on notice, and as thus modified the-order in ■ question should be affirmed, with costs to appellant to-abide the event of the action.

Beekman, P. J., and Gildersleeve, J., concur.

Order modified, and as- modified affirmed, with costs to appellant to abide event.