Csatlos v. Metropolitan Street Railway Co.

Majority

p. 459

William Csatlos, an Infant, by John Csatlos, his Guardian ad Litem, Appellant, v. Metropolitan Street Railway Company, Respondent.

Headnote

Leave by the Appellate Division to apply below to open a default—it does not imply that it slmild be opened.

The granting by the Appellate Division, upon payment of certain costs, of leave to apply to the court below to open a default, should not be taken by the court below as an intimation that the Appellate Division is of the opinion that the default should be opened.

Appeal by the plaintiff, William Csatlos, an infant, by John Csatlos, his guardian ad litem, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of December, 1901, granting the defendant’s motion to open its default.

Clifford Seasongood, for the appellant.

Theodore H. Lord, for the respondent.

This order should be affirmed, but in view of the opinion of the justice below granting the motion it may be proper to say that the giving of leave by the Appellate Division,, upon payment of certain costs, to apply to. the court below to open a default is by no means to be taken by the court below as an intimation that the Appellate Division is of the opinion that the default ought to be opened. The leave may be given because, as the Appellate Division will not pass upon these questions, it thinks that the party in default ought to have his excuse passed upon on the merits. In many instances, where such leave is given, if the Appellate Division passed upon the merits of the excuse offered it would dismiss the appeal.

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.