Dinsmore v. Adams

Headnote

Where a motion, to vacate a judgment taken by’default is-made both- on the ground of mistake, inadvertence, surprise or excusable neglect, and also on the ground of fraud, and the facts warrant the granting of the motion on that ground, it will be presumed, On appeal from an order of General Term, affirming an order granting the motion, as against an objection, that the order" was granted'more than a year after notice of judgment, and so was improper under section 174 of the Code; that the orddr Was granted on the ground1 of .fraud; and the limitation of said section does not apply.

Such an order is not reviewable here.

These were cross appeals. Plaintiffs appealed from." an cider of General Term affirming, an order of- Special Term vacating and setting aside the judgment herein as against thirty-five of the defendants.. Defendant Daniel Phillips-¿nd fifteen others appealed from an order denying the motion as to them. (Reported below, 5 Hun, 149 .)

The motion was made on the ground oí inadvertence and excusable' neglectj and also’on .the ■ ground of fraud. ■ TÍie court held, as to defendants’ appeal,, that- the mdtion was addressed to the discretion of the court and was not appeal-able, citing Foote V; Lathróp (41' if. Y, 358), SaJiaétilér v. Gardiner (47 id., 404), Depew v. Dewey (56 id., 657), White v. Coulter (59 id., 629), Miller v. Tyler (58 id., 480).

As to plaintiff’s appeal, it was urged that the motion should not have been granted as the time limited by the Code (§ 174) for making such a motion had expired. Held, as- above.