Alling v. Fahy — 70 N.Y. 571

Majority

p. 571

William Alling et al., Executors, etc., Appellants, v. John Fahy et al., Respondents.

(Argued September 18, 1877;

decided September 25, 1877.)

Headnote

An order setting aside a judgment taken by default in a foreclosure suit and a sale thereunder, and allowing a defendant to put in a defense, is discretionary with the court below, and is not reviewable here.

It seems, that, in such case, the General Term may review the exercise of discretion by the Special Term.

p. 572

Appeal from an order of the General Term of the Supreme Court in the fourth judicial department, affirming an order of Special Term, which order set aside a judgment of foreclosure herein and a sale thereunder, substituted a defendant, and allowed him to interpose the defense of usury.

It was stated in the order of Special Term that the judgment and the sale were “ vacated and set aside as irregular, and also on the broad equities of the case.”

John Van Voorhis, for the appellants.

Edward Harris, for the respondents.

The order in this case is not appealable to this court. The judgment of foreclosure was by default, which, with the subsequent proceedings, were sot aside, and the defendants were allowed to put in a defense, and whether for irregularity or upon the “ broad equities,” or as a favor, it was entirely discretionary with the court below, and hence not appealable.

The counsel for the defendant urged that the order is unjust to the infant plaintiffs, whose money had been invested in good faith in the mortgage, and under circumstances entitling them to protection. If so, it is presumable that the trial will result in their favor; while, if a valid defense exists, it cannot be said in a legal sense to be unjust or inequitable to permit it to be interposed; but whether just or not, it was for the Supreme Court, who have control over judgments rendered in that court, to determine.

No question of power is involved. The General Term could review the exercise of discretion by the Special Term, but this court cannot.

The appeal must be dismissed.

All concur.

Appeal dismissed.