Majority
p. 520SCHRENK & CO. v. GURFEIN. (Supreme Court, Appellate Term, First Department. March 1, 1913.) Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
Headnote
Courts (§ 190[1] )—Municipal Courts—Decisions Review able.Where defendant’s default in the Municipal Court was due to the failure of the court to grant an adjournment while his counsel was engaged in another trial, an order, granting a motion to open the default on condition that he deposit the amount of the judgment or give an undertaking, was tantamount to a denial of the motion, and therefore appealable.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Schrenk & Company against Joseph Gurfein. From an order denying defendant’s motion to open a default unless he should deposit the amount of the judgment or give an undertaking as provided in Municipal Court Act (Laws 1902, c. 580) § 256, defendant appeals. Reversed, judgment vacated, and new trial ordered.
Isidor Cohn, of New York City, for appellant.
Douglass & Minton, of New York City, for respondent.
The defendant in this case was entitled to have his default opened because it had occurred through failure to accord him an adjournment while his counsel was engaged in the trial of another action. Under these circumstances, the granting of the motion upon the terms imposed was tantamount to a denial of the motion, and therefore becomes appealable.' Sutton v. Bayles, 70 Misc. Rep. 522 ,
p. 521
127 N. Y. Supp. 432 ; Goldstein v. Frumkes, 74 Mise. Rep. 450, 132 N. Y. Supp. 318 .
Order reversed, judgment vacated, and a new trial ordered, with costs to appellant to abide the event. All concur.
Cases cited
- Sutton v. Bayles 70 Misc. Rep. 522 p. 520