In re the Estate of Rock

In an accounting proceeding, the appeal is from a decree of the Surrogate’s Court, Dutchess County (Benson, S.), dated September 28, 1983, which, inter alia, denied appellant’s application to vacate a default in appearance and settled the account of the executor. Decree reversed, on the law and in the exercise of discretion, without costs or disbursements, and matter remitted to the Surrogate’s Court, Dutchess County, for further proceedings consistent herewith. A review of the entire record convinces us that it was an improvident exercise of discretion to deny appellant’s application to vacate his default (see Smith v Waldbaum’s Supermarket, 99 AD2d 530; Matter of Kline, 59 Misc 2d 27). Further, the merits may only be resolved following a hearing (see SCPA 1808, subd 5; Matter of Starr, 86 AD2d 829). Titone, J. P., Lazer, Bracken and Boyers, JJ., concur.