I concur in the view that, where the order opening the default contains terms not authorized by the Municipal Court Act or coupled with such requirements as to their compliance as to practically amount to a denial of the motion, we may regard the order as a denial of the motion which may be reversed or modified by this court. In this case, however, I find that the terms are authorized by the Municipal Court Act and the requirements ■as to their compliance within the sound discretion of the court.
¡Section 256 permits the -court to order the defendant to deposit the amount of the judgment or to give an undertaking with sufficient sureties for that amount. As I read the statute, *528the order need not be in the alternative, but may require the deposit of the amount of the judgment without giving the right to give a bond in its pl-aee. Clement v. White’s Express, 120 N. Y. Supp. 752; Kramer v. Horowitz, 111 id. 697. While it may be that the purpose of the section is to provide for security and that justice is usually best subserved by making the order in the alternative, -there are instances where the permission to give a -bond would, by reason of the necessary -delays or for -other causes, work .a possible injustice to the plaintiff. In my opinion this case presents such an instance.
The -defendant states that he is a young -attorney, accused of a grave dereliction in his professional duties. If he is innocent, he would, it might be supposed, naturally seek to litigate the charge and to clear his name -as soon as possible; yet I find from the -affidavits that, when the case was reached on J une twentieth, -after repeated -adjournments,, he “ was out of town ” without a legal ex-cuse. He urges, it is true, that he left town relying upon his attorney’s statement that the plaintiff’s -attorney had consented to an -adjournment to the twenty-first; but, not only does his attorney not corroborate him directly, but the affidavits of the -attorney are hardly reconcilable with the defendant’s affidavit on this point. On the twenty-second day of June, the defendant obtained a stay of execution in -an order to -show cause returnable on June ■twenty-ninth, seven days thereafter and only one day before .the court’s summer vacation, -although section 1 of the Municipal Oourt Act expressly limits the jurisdiction of the .court to grant stays of five days. The order was subsequently modified, apparently on the plaintiff’s demand, and was made returnable on June twenty-seventh. On that date the -plaintiff presented -affidavits in -opposition to -th-e defendant’s- motion which, if true, answer every point raised in support thereof, -but consenting to open the default “ upon condition that the -amount of the judgment be paid into court and costs of. this motion be paid on or before the 28-th -day -of June and that the -case be set down f-or trial for the 2'9th day of June so that the -case will be disposed of before the fall.”
*529Under these circumstances the justice could in his discretion open the default upon the terms suggested by the plaintiff and was not 'bound to grant the defendant’s motion upon less onerous terms which would result in a long delay, especially since there is ample evidence to show that the defendant’s motion was not in good faith but interposed only for delay. The justice, however, apparently sought to make the terms as light as was possible without causing such delay and granted the defendant the alternative of filing a bond within a period shorter, it is true, than would usually be justified, but extending to the last day of the term. This condition was not only, in my opinion, within the sound discretion of the court, but a less onerous condition would have been an abuse of discretion.
The defendant failed to meet these terms by producing sureties who could justify, or by depositing" the money in court, and the judgment rendered upon his default should not be vacated.
Order reversed.