(dissenting).—The statute upon which the motion to set aside the judgment in this case was based provides that the court may, upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a. judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Code Proc., §221.
While I readily concede that the power to relieve from judgments, under this provision of the statute, is to a great extent discretionary, I do not think that the court possessed the power to arbitrarily impose terms *665that were oppressive or unjust. Under the law no terms may be exacted but such as are just. Hand v. Burrows, 15 Hun, 481. And in my opinion the condition upon which the court was willing to grant the relief demanded by the* appellant was palpably unjust. If it be true, as suggested, that it appeared that the defendant,only desired to have the judgment vacated in order to defeat the claim of the plaintiff, it would seem too plain for argument that the motion should have been denied, as not being in furtherance of justice. On the other hand, if it appeared that the defendant was justly entitled to be relieved from the judgment, such relief should have been granted without the imposition of such unreasonable and, to my mind, unjust terms as were imposed upon the defendant in this case.
I therefore respectfully dissent from the conclusion reached by the majority of the court.