Walkley v. Cupeta — 107 N.Y.S. 40

Majority

p. 40

WALKLEY v. CUPETA.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Coubts—Municipal Coubt of New Yobk City—Appeal.

Under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 257, providing that an appeal will lie from an order denying a motion to open a default, an appeal is permitted only from an order, and until the order is entered no appeal will lie; hence, where it seems that a motion to open a default was made and denied, but no order denying the motion appears upon the record, and respondent claims that none was ever made or entered, the appeal will be dismissed.

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Frank E. Walkley, Jr., against Elizabeth M. Cupeta. From a denial of a motion to open a default, defendant appeals. Appeal dismissed.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

Leon N. Futter, for appellant.

J. Wilson Bryant, for respondent.

• This appeal must be dismissed. The notice of appeal recites that it is taken from an order “made and entered herein June 38, 1907, denying defendant’s motion to open her default.” No such order appears in the record, and it is claimed by the respondent that none was ever made or entered, although it seems that such a motion was made and denied. Until an order is entered no appeal will lie, as such an appeal is only permitted to be taken from “an order.” Sections 353, 357, Municipal Court Act (Laws 1903, pp. 1563, 1563, c. 580).

Appeal dismissed, with $10 costs.