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Ginsberg v. Borenstein

126 N.Y.S. 549 Court N.Y. App. Term Decision date 1911-01-05 English

Delivered by GIEGERICH, J.

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p. 549
GINSBERG v. BORENSTEIN et al.
(Supreme Court, Appellate Term.
January 5, 1911.)

Headnote

Appeal and Error (§ 946*)—Discretion of Trial Court.
An appellate court will interfere with the rulings of a trial court made within its discretion only when an injustice is done.
[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. § 3812; Dec. Dig. § 946.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Samuel Ginsberg against David Borenstein and another. Defendants appeal from an order denying their motion to open their default, and one denying a motion for a reargument of the former motion.
Modified and affirmed.
See, also, 123 N. Y. Supp. 809 .
Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
Edward E. Hoenig, for appellants.
Louis B. Brodsky, for respondent.

Defendants appeal from two orders of the Municipal Court; -one denying their motion to open their default with $10 costs, and one denying a motion for a reargument of the former motion. An examination of the papers discloses no reason why this court should disturb the discretion exercised by the court below in denying the motions. "An appellate court only interferes with the rulings of a trial court made within its discretion when an injustice may have been done.” Richard v. National Distilling Co. (Sup.) 95 N. Y. Supp. 547 . Costs, however, should not have been imposed upon the denial of the motion (Martin v. Lefkowitz, 62 Misc. Rep. 490 , 115 N. Y. Supp. 64 ), and the motion for a reargument should have been dismissed.

Order denying motion to open default modified by striking therefrom the imposition of costs and, as modified," affirmed, with $10 costs to respondent.

Appeal from order denying motion for reargument modified by striking therefrom the imposition of costs and directing that the motion be dismissed and, as so modified, affirmed, with $10 costs to respondent. All concur.

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