Majority
p. 46Ernest Muldenor, Administrator of Hermann E. Ludewig v. Patrick McDonogh.
Headnote
A motion to open a default, and set aside an inquest, is addressed to the discretion of the court, and no appeal lies from an order denying such motion.Appeal from an order at special term, denying a motion to open the defendant’s default and set aside an inquest taken against him.
This suit was originally commenced in the name of Hermann Ludewig as plaintiff, and, under the title of Ludewig v. McDonogh, was on the calendar. After issue joined, Ludewig died, and the present plaintiff was substituted. The defendant put in a new answer, denying, among other things, the appointment of administrator ; but the cause was not put upon the calendar under its new title. The cause being reached by its original title, an inquest was taken. The defendant’s attorney moved to set aside the inquest on the ground of irregularity, but did not specify the irregularity complained of in his notice. The motion was denied, and the defendant appealed.
F. Cahill, for the appellant.
p. 47
Martin & Smiths, for the respondent.
The motion made at the special term was one addressed to the discretion of the court, and from the order made no appeal lies. St. John v. West, 4 How. Pr. Rep. 331 ; Seeley v. Chittenden, 10 Barb. 303 ; Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 357; Sherman v. Felt, 2 Coms. 186. The order might have been reviewed under the rule of this court, adopted March, 1851, upon the certificate of the judge by whom the order was made, that the question involved was one of importance and doubt. Mead v. Mead, 2 E. D. Smith, 223. The certificate not having been procured, the appeal must be dismissed.
Ordered accordingly.
Cases cited
- Seeley v. Chittenden 10 Barb. 303 p. 47