New Amsterdam Casualty Co. v. Augner

Plaintiff appeals from an order vacating, upon terms, a judgment entered on inquest. The application to open the default sought the favor of the court and, therefore, irrespective of whether under the present circumstances the right of plaintiff to use, without defendant’s consent, testimony of the witness who had died since the taking of the inquest is sanctioned by law (See Bradley v. Mirick, 91 N. Y. 293), we feel that the court should have required the defendant to stipulate that such testimony might be used as a condition to opening the default.

The order should be modified by providing…