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Browning v. New York Leasing Co.

111 N.Y.S. 704 Court N.Y. App. Term Decision date 1908-06-30 English

Delivered by MacLEAN, J.

Contents

Majority

p. 704
BROWNING v. NEW YORK LEASING CO.
(Supreme Court, Appellate Term.
June 30, 1908.)

Headnote

1. Appeal and Error—Decisions Re view able—Orders in Default.
No appeal lies from a final order in default entered in a summary proceeding in the Municipal Court.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 885-891.]
2. Courts—Municipal Coup.ts—Appeal—Orders in Default.
Under the express provisions of Municipal Court Act, Laws ■ 1902, p. 1563, c. 580, § 257, an appeal lies from an order denying a motion to open a default entered in a summary proceeding in the Municipal Court.
3. Same—Motion to Open Default—Discretion of Court.
A motion to open a default in the ^Municipal Court is addressed to the discretion of the carat.
Appeal from Municipal Court, Borough of Manhattan, Third district.
Summary proceeding by Edward W. Browning, landlord, against the New York Leasing Company, tenant. From a final order in default, and an order denying a motion to open the default, the tenant
p. 705
appeals.
Appeal from final order dismissed. Order denying motion to open default affirmed.
See 110 N. Y. Supp. 928 .
Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ. - ■
Williamson & Smith (J. Boyce Smith, Jr., of counsel), for appellant.
H. Schieffelin Sayers, for respondent.

The defendant appeals from two • orders, one final and in default in a summary proceeding, which is not appealable (Catalano v. North British & Mercantile Ins. Co., 50 Misc. Rep. 536 , 99 N. Y. Supp. 524 ), and the other an order denying its motion to open the default, which is appealable (Municipal Court Act, Laws 1903, p. 1563, c. 580, § 357).

The motion to open the default was addressed to the discretion of the court, and was made, not because of defense upon merit, but because of an asserted counterclaim theretofore interposed as claim in an action in another court for the recovery of rent. Objecting to the petition because some under tenants were not properly parties and disclosing no interest thereto, its objection might and may have appealed to the mind of the justice below, the exercise of whose discretion was invoked, as a matter largely of fence foretime, in view of the near approach and opportunity for the collection of another month’s rent. That order should stand.

The appeal from the final order is dismissed, with $10 costs to. the respondent, and the order denying the motion to open the default is affirmed, with costs.

GILDERSLEEVE, P. J., concurs. SEABURY, J., concurs in result.