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Ballin v. Clark

140 N.Y.S. 378 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.

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p. 378
BALLIN v. CLARK.
(Supreme Court, Appellate Term, First Department.
March 7, 1913.)

Headnote

Courts (§ 190[1] )—Municipal Court—Orders Appealable—Order Opening Default.
An order opening a default but not vacating the judgment which was granted thereon is not within Municipal Court Act (Laws 1902, c. 580) § 257, excepting -from appealable orders an order opening a default" and vacating a judgment entered thereon.
. [Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. §§ 103, 8379%.]
p. 379
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Sarah Ballin against Thomas F. Clark. From an order of the Municipal Court of the City of New York opening his default on condition that he deposit the amount of the judgment'or file an undertaking to secure said judgment, defendant appeals. Modified and affirmed.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
Robert Jablin, of New York City, for appellant.
Harry Edwards, of New York City, for respondent.

It is to be observed in this case that the order appealed from did not vacate the judgment which was granted upon the default. It is therefore not within the exception from appealable orders specified in section 257 of the Municipal Court Act. Dorfman v. Hirschfield, 53 Misc. Rep. 538 , 103 N. Y. Supp. 698 . Upon the merits, I am of opinion that the default should have been opened on the payment of moderate costs.

The order will be modified by granting the motion to open the default and vacate the judgment upon payment of $5 costs, and, as thus modified, it is hereby affirmed. All concur.

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