Majority
p. 549LIEBLING v. BORG. (Supreme Court, Appellate Term. December 16, 1908.)
Headnote
1. Appeal and Ebbob (§ 127[1] )—Judgments Not Appealable—Default Judgments.' A default judgment is not appealable, and an appeal therefrom must be dismissed.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 885; Dec. Dig. § 127.*]
2. Judgment (§ 159*)—Default—Motion to Open—Defective Affidavits.
A motion to open a default is properly denied where the affidavits upon which it is based are radically defective.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 312; Dec. Dig. § 159.*]
3. Judgment (§ 174*)—Default—Motion to Open—Renewal.
A defendant whose motion to open a default judgment has been denied for insufficiency of the affidavits should be permitted to renew it where it does not clearly appear that he'has no defense, or that he acted
p. 550Argued before GIEGERICH, HENDRICK, and FORD, JJ.
in bad faith in asking an adjournment, on refusal of which default was taken.
[Ed. Note.—For other cases, see Judgment, Cent Dig. § 309; Dea Dig. § 174.*]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Oscar Diebling against Myron -Borg. From a default judgment for plaintiff, and from an order refusing to open the default, defendant appeals.
Appeal from judgment dismissed. Order affirmed, with leave.
James B. Henney, for appellant.
Millard H. Ellison, for respondent.
This is an appeal by the defendant from a judgment taken against him by default, and also from an order denying a motion to open such default. A judgment by default is not appeal-able, and for that reason the appeal must be dismissed. There can be no doubt but that the affidavits upon which defendant’s motion to open his default was based are radically defective, and the motion was therefore properly denied. It does not clearly appear, however, that the defendant has no defense, or that he was acting in bad faith in seeking the adjournment, and he should be permitted to renew his motion.
Appeal from the judgment dismissed. Order affirmed, with costs, with leave to renew within 10 days upon payment of such costs.