Percy v. Sire — 119 N.Y.S. 225

Majority

p. 225

PERCY v. SIRE.

(Supreme Court, Appellate Term.

November 12, 1909.)

Headnote

1. Courts (§ 190*)—Municipal Courts—Appealable Order.

An order of the New York Municipal Court, denying an application for a reargument of a previous motion to open an alleged default judgment, is not appealable.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 3379% ; Dec. Dig. § 190 ;* Appeal and Error, Cent. Dig. § 103.]

2. Appeal and Error (§ 123*)—Appeal eroji “Decision.”

An appeal can only be taken from a judgment or order and no appeal lies from a “decision” merely.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 875-879; Dec. Dig. § 123.*]

31 Appeal and Error (§ 113*)—Appealable Orders.

Where defendant appeared by counsel on the trial, there was no default; and so no appeal lies from an order denying an application to open an alleged default judgment against him.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 766; Dec. Dig. § 113.*]

13 *For other cases see same topic & § nxtmber in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Herbert Percy against Leander S. Sire.. From an order denying an application to vacate a default judgment, and from a decision denying a reargument of the motion, as well as an adjournment, defendant appeals.

Affirmed.

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

Bennett E. Siegelstein, for appellant.

Ernst, Lowenstein & Cane, for respondent.

There is no merit in of the numerous which the defendant lias taken in this action. The defendant appeals from (1) an order of the Municipal Court denying an application for a reargument of a previous motion to open an alleged default. Such an order is not appealable, and the appeal is dismissed, with costs.

The defendant also appeals (2) from a “decision” denying a motion for an adjournment of the trial. An appeal can only be taken from a judgment or order. No appeal lies from a “decision” merely. This appeal is dismissed, with $10 costs.

p. 226

•The defendant also appeals from (3) an order denying an application to open an alleged default. The defendant appeared by counsel upon the trial. There was no default, and consequently no appeal lies from this order.' This appeal is therefore dismissed, with $10 costs.

The defendant also appeals from (4) the judgment entered against him. The appeal is absolutely without merit, and the .judgment appealed from is affirmed, with costs.