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Steindler v. American Bonding Co.

101 N.Y.S. 795 Court N.Y. App. Term Decision date 1906-12-11 English

Delivered by GILDERSLEEVE, J.

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p. 795
STEINDLER v. AMERICAN BONDING CO.
(Supreme Court, Appellate Term.
December 11, 1906.)

Headnote

1. Appeal—Decisions Review able—Default Judgment.
A default judgment in the Municipal Court of the City of New York is not appealable.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 885.]
2. Same—Obdeb Opening Default.
An appeal lies from an order of the Municipal Court of the City of New York denying a motion to open a default.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 766.]
S. Same—Obdeb on Motion fob Reabgument.
No appeal lies from an order of the Municipal Court of the.City of New York denying a motion for reargument.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 745.]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Robert M. Steindler against the American Bonding Company. Defendant appeals from a judgment for plaintiff and an order denying a motion to open a default, as also from an order denying a motion for reargument. Appeal from judgment dismissed, order denying motion to open default reversed and remanded, and appeal from order denying motion for reargument dismissed.
Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
Joseph L. Prager, for appellant.

There are two appeals in this case—one from a "judgment entered against the defendant upon an inquest and an order denying its motion to open its default, and one from an order denying a reargument of the motion made to open such default.

A judgment taken by default is not appealable. Kerr v. Walter, 104 App. Div. 45 , 93 N. Y. Supp. 311 ; Levenson v. Arnold (Sup.) 97 N. Y. Supp. 990 . An appeal, however, lies from an order denying a motion to open a default. Schrenkeinsen v. Kroll (Sup.) 85 N. Y. Supp.

p. 796
1072 . An examination of the affidavits used upon the motion to open the default of defendant leads us to the conclusion that the motion should have been granted and the defendant permitted to have its day in court. The appeal from the order denying the motion for reargument must be dismissed. Such an order is not an appealable one. Leavitt v. Katzoff, 43 Misc. Rep. 26 , 86 N. Y. Supp. 495 .

Appeal from judgment dismissed, with $10 costs. Order denying motion to open default reversed, with costs, and case remanded to Municipal Court for trial. Appeal from order denying motion for reargument dismissed, with $10 costs. Costs of one party to be offset against costs in favor of the other. All concur.