Guggolz v. Arch Realty & Construction Co.

This is an appeal from an order denying a motion to open the default of the defendant in failing to proceed with the trial of the case after the same had been reached. The court below denied the motion, not upon the 'merits, 'but solely, as stated in his order denying the same, upon the ground of want of power. In this the court below *259was clearly in error. There has been a failure to distinguish between the case of Lavenfeld v. Adler, 99 1ST. Y. Supp. 799 and cases like the case at bar, where the defendant is clearly in default, and has a right to have it determined whether or not he is…