Mason v. United Press — 51 A.D. 473

Majority

p. 473

Frederic G. Mason, as Assignee for the Benefit of Creditors of the United Press (of New York), Appellant, v. The United Press (of Illinois), Respondent. Joseph F. Tobin, Assignee of the Judgment herein, Appellant.

Headnote

Appeal from a refusal, on opening a default, to allow the judgment to stand, as security — when ineffective.

A notice of appeal from so much of an order vacating a judgment entered by default “as refuses to allow the judgment entered herein on the 28th day of December, 1899, and the creditors’ action brought thereon, as set forth in the motion papers, to stand as security,” presents no question for review upon appeal,where the order does not contain the provision quoted, and it does not appear that the appellant made any application to have it contain such provision. .

Appeal by the plaintiff, Frederic Gr. Mason, as assignee for. the benefit of creditors of the United Press (of New York), and Joseph F. Tobin, assignee of the judgment herein, from so much of an order of the Supreme Court, made at the New York. Special Term,

p. 474

bearing date the 22d day of March, 1900, and entered in said clerk’s office, “as'refuses to allow the judgment entered herein on the 28th , day of December, 1899, and the creditors’ action brought thereon as set forth in the motion papers, to stand as security.”

A. Walker Otis, for the appellants.

Flamen B. Caudler, for the respondent.

The plaintiffs having commenced this action, judgment was entered against the defendant by default for want of an answer on December 28, 1899. Immediately after the defendant made a motion to open the default and to set aside the judgment and'for leave to answer. Upon that motion an order was entered- opening the default setting aside the- judgment and allowing t-he defendant to answer within twenty days from -the entry of the, order, upon payment of ten dollars costs. The plaintiff appealed, not from the order, but from so much of the order as refuses to allow the judgment entered in the^ creditors’ action brought thereon to stand as ' security. ' •

We think no question is presented upon this appeal. There is nothing in the order which refuses to allow the judgment to stand as security, nor does it appear that any application for. such a provision was made. The plaintiffs have not seen fit to- appeal from the order setting aside the judgment and opening the default. The determination as to the terms imposed- by the court as a condition for opening the .default could only be reviewed by a direct' appeal from the order which imposed them, and such an appeal has ■ not been taken.

It follows that the appeal must be dismissed, With ten dollars costs and disbursements.

Van Brunt, P. J., Rumsex,. Patterson and Hatch, .JJ., concurred.

Appeal dismissed, with ten dollars costs and disbursements.