Majority
p. 163(140 App. Div. 748.) GAINSLEY v. PERRY. (Supreme Court, Appellate Division, Third Department. November 16, 1910.) Argued before SMITH, P. J., and KELLOGG, COCHRANE, SEWELL, and HOUGHTON, JJ.
Headnote
Courts (| 190[1] )—City Court—Appeals — Order Denying Motion to Open Default.Since Laws 1898, c. 312, § 14, governing appeals from the City Court of Albany, as amended by Laws 1899, c. 590, § 6, and providing for appeals from an order granting a new trial, makes no provision for an appeal from an order denying a motion to open a default, no appeal lies in such case.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]
Appeal from Albany County Court.
Action by Allen S. Gainsley against Bertha Perry. Judgment for plaintiff, and, from an order of the County Court reversing and vacating an order of the City Court denying defendant’s motion to open her default, plaintiff appeals.
Order of County Court reversed, and appeal to such court dismissed.
Henry J. Crawford, for appellant.
Smith O’Brien, for respondent.
The plaintiff has recovered a judgment in the City Court of Albany by default for $71.51. A motion was made by the defendant in the City Court to open her default, which motion was denied. From the order denying the motion the defendant appealed to the County Court of Albany county. The County Court denied a motion to dismiss the appeal and "reversed the order of the City Court and vacated the judgment and granted a new trial. From this order plaintiff has here appealed.
p. 164
We think the order of the County Court was without authority, upon the ground that there is no statutory provision for an appeal from the order of the City Court denying a motion to open a default. The statute governing appeals from the City Court of Albany is chapter ,312 of the Laws of 1898, as amended by chapter 590 of the Laws of 1899. By section 14 of that chapter provision is made for appeals from an order granting a motion for a new trial. The right of appeal is purely statutory, and nowhere in the section is there any authority given to appeal from an order of the City Court denying a motion to open a default. The order of the County Cour.t should therefore be reversed, with $10 costs and disbursements, and the appeal to the County Court dismissed, with $10 costs
Order of the County Court' reversed, with $10 costs and disbursements, and appeal to the County Court dismissed, with $10 costs. . (