Peck v. Kamsler — 104 N.Y.S. 346

Majority

p. 346

PECK v. KAMSLER.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Judgment—Opening Default—Discretion of Court—Imposition of Terms.

The court acted within its discretion in opening a default and imposing as a condition thereof the payment of costs and the placing of the action upon-the short-cause calendar.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 328.]

Appeal from City Court of New York, Trial Term.

Action by Emanuel Pe.ck against Jennie Kamsler. Erom an order opening a default, plaintiff appeals.

Affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Rudolph Marks, for appellant.

Ehrenberg & Manne, for respondent.

This is an appeal from an order opening a default, resulting in the dismissal of the cdmplaint in an action upon the calendar of Trial Term, Part 2, of the City Court. The appellant seeks to have the order modified, by striking out the provision imposing costs, and directing that the action be placed upon the calendar of Trial Term, Part 4.

The opening of the default was discretionary with the court, and as a condition of exercising this discretion in favor of the plaintiff the court imposed costs and required that the action should be placed upon the calendar of Trial Term, Part 4, so that it might be promptly reached for trial. Henry Huber Co. v. Soles, 12 Misc. Rep. 548 , 34 N. Y. Supp. 17 . There was no abuse of discretion in making the order appealed from. There is nothing in the record before this court to show that the case is not of such a character that it could properly be tried at Part 4, which is the special calendar for the trial of short causes.

The order appealed from is affirmed, with costs and disbursements. All concur.