Thaler

J.—The complaint, as filed in this action, stated a cause of action against defendant for recovery of the sum of $8,929, with interest as stated. C. B. Conlin and S. Jack Cohen were plaintiff’s attorneys of record. On the face of the record it appears that after due service of summons and complaint, the default of the defendant for failure to appear was duly entered, and judgment was entered by the clerk on April 18, 1930. Four days later defendant gave notice of motion to vacate the judgment and default, and the subsequent execution and levy, on the ground that said proceedings were taken against the defendant through his mistake, inadvertence, surprise and excusable neglect. Said motion was based on affidavits served and filed therewith. The motion was submitted upon the record, including said affidavits and certain counter-affidavits made by Alys Ulberg, C. B. Conlin and S. Jack Cohen. The motion was denied. Plaintiff appeals from the order.

Presumably Mr. Conlin and Mr. Cohen appeared and, as attorneys for plaintiff, resisted the motion, although the plaintiff herself furnished to defendant one of the affidavits upon which the motion was based. There is no record of any…