dissents in part in a memorandum as follows: While I would grant leave to the defendant to appear and defend at a new inquest, I must dissent from the vacatur of the default judgment. The defendant, having already defaulted, moved to strike the complaint for failure to state a cause of action or, in the alternative, to compel acceptance of the answer. The motion was denied by the Judge at Special Term (Blyn, J.), with leave to bring on a new motion to vacate defendant’s default with an affidavit setting forth a meritorious defense and upon payment of $40 motion costs. The defendant did not comply. Thereafter an inquest was taken and when the plaintiffs took action to enforce their judgment, the defendant served a notice of appeal and only thereafter moved by order to show cause to vacate the default. The excuse given for the original default was that the insurance carrier was waiting for an indication of special damages in order to adjust the claim. Under the circumstances, there would seem to me to be no proper basis for setting aside the original default. However, the inquest was superficial and the amount of the judgment seemingly excessive, and as to that, the judgment should be vacated and a new inquest directed. The order of this court in granting complete absolution to the defendant goes to the opposite extreme of the now discredited (CPLR 2005) Barasch/Eaton rule (49 NY2d 594; 56 NY2d 900), and is just as egregious.