Majority
Headnote
Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Charles Wissman Company against William E. D. Stokes. From an order denying its motion to open its default, and from other subsequent orders in the action, plaintiff appeals. Crder denying motion to open default reversed, judgment vacated, and new trial ordered. Appeals from other subsequent orders dismissed. Emanuel Jacobus, of New, York City (Joseph J. Dreyer, of New York City, of counsel), for appellant. Hastings & Gleason, of New York City (Edward L. Dennis, of New Yorlc City, of counsel), for respondent.There are two appeals in this case. The first comes up upon a notice of appeal dated February 20, 1913, and is an appeal from an order entered on January 31, 1913, which denied plaintiff’s motion to open its defaulti The other appeals are' from orders made in the same action, but subsequent to the order above mentioned. Under the decision in Colwell v. N. Y., N. H. & H. R. R. Co., 57 Misc. Rep. 623 , 108 N. Y. Supp. 540 , and Steinman v. Blumenfeld, 61 Misc. Rep. 220 , 113 N. Y. Supp. 550 , the proceedings in this action subsequent to the granting of the order appealed from were unauthorized. We are of the opinion that the motion made by plaintiff to open its default should have been granted. The reasons of the plaintiff for failing to appear at the time the action was dismissed were set forth in the moving affidavits, and were sufficient to excuse its default. Order of January 31, 1913, reversed with costs. Judgment vacated and set aside, and new trial ordered. Appeals from orders of April 4 and 11, 1913, dismissed.
Cases cited
- Steinman v. Blumenfeld 61 Misc. Rep. 220 p. 1112