Ciccarella v. McCarthy

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Under the circumstances it was an abuse of discretion for Special Term in vacating the default judgment not to require that the judgment remain as security for any recovery plaintiff might obtain (see Rawson v Austin, 49 AD2d 803). The order is" modified to include such requirement as a condition and plaintiff is stayed from any enforcement of the judgment pending determination of the action. (Appeal from order of Erie Supreme Court—■ vacate default judgment.) Present—Cardamone, J. P., Simons, Hancock, Jr., Schnepp and Doerr, JJ.