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Sullivan v. Bankers' Surety Co.

102 N.Y.S. 868 Court N.Y. App. Term Decision date 1907-02-11 English

Delivered by MacLEAN, J.

Contents

Majority

p. 868
SULLIVAN v. BANKERS’ SURETY CO.
(Supreme Court, Appellate Term.
February 11, 1907.)

Headnote

Appeal—Review—Discretion oe Court—Opening Default.
Where the justice below exercised, apparently without abuse, his discretion in opening upon terms the default of plaintiff in serving a reply to the counterclaim set up in defendant’s supplemental answer, his determination calls for no interference on appeal, particularly where the very allegations of the counterclaim denied in the reply have already been deemed denied by statute.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3823.]
Appeal from City Court of New York, Special Term.
Action by Maurice Sullivan against the Bankers’ Surety Company. Erom an order granting plaintiff’s motion for leave to serve a reply to the counterclaim set up in defendant’s answer, defendant appeals. Affirmed.
Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.
White & Blackford, for appellant.
Laurence G. Goodhart, for respondent.'

The justice below, informed of facts and circumstances, exercised, apparently without abuse, his discretion in opening upon terms the default of the plaintiff, and his determination calls for no interference here, particularly as leave had been granted to the defendant to serve a supplemental answer, needlessly effusive, even offensive, by borrowed allegations, deemed to be denied elsewhere than in the iterative counterclaim, to which the plaintiff has by order been allowed to reply.

Order affirmed, with costs and disbursements.

GILDERSLEEVE and AMEND, J j., concur in result.