Hurowitz v. Simons — 159 N.Y.S. 858

Majority

p. 858

HUROWITZ v. SIMONS.

(Supreme Court, Appellate Term, First Department.

June 26, 1916.)

Headnote

1. Appeal and Erkob <§=>113(3)—Decisions Reviewable—Motion to Open

Default.

Where defendant did not appear on the return of an order granted to show cause why his default should not be opened, an order entered denying his motion, being taken by default, was not appealable.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 766, 767; Dec. Dig. <§=>113(3).]

2. Judgment <§=>174—Motion to Open Default—Renewal.

An order taken by default, denying defendant’s motion to open a judgment by default entered against Mm, still being in force, a second motion to open his default, returnable before another justice, was properly denied, since the proper practice would have been to have moved to vacate the first order and be permitted to have the motion heard upon the merits and before the-same justice who granted the order to show cause.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 309, 337; Dec. Dig. <§=>174.]

<te>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-

Appeal from Municipal Court, Borough of Manhattan, Bighth District.

Action by Solomon Hurowitz against Berry B. Simons. From two orders denying his motion to open his default, defendant appeals. Appeal from first order dismissed. Second order affirmed.

Argued June term, 1916,

before GUY, BIJUR, and PHILBIN, JJ..

David D. Deutsch, of New York City, for appellant.

Philip Wellins, of New York City, for respondent.

[1,2] After numerous adjournments were had in: this case, it finally appeared on the day calendar for trial on April 11,. 1916. When called, an affidavit was presented on the part of the defendant, and a further adjournment asked for, which the court refused to grant, and an inquest was taken. Thereafter an order to show cause why the defendant’s default should not be opened was granted, and made returnable April 21, 1916. On the return of this motion the defendant did not appear, and an order was entered denying it. This is the first order appealed from. Subsequently another order to show cause was obtained, asking for the same relief, based upon the same-grounds, and returnable before another justice on April 24, 1916, and the motion was again denied. This is the second order appealed from.

The order of April 21st was one taken by default, and is not appeal-able. Although not appealable it was nevertheless in force when defendant made the second motion, and no leave to renew the motion was asked for or obtained. The proper practice would have been to have moved to vacate the first order of April 21st, and be permitted to have the motion heard upon the merits and before the same justice who granted the order to show cause. Goldenberg v. Adler, 123 N. Y. Supp. 387 .

Appeal from order of April 21, 1916, dismissed. Order of April 24, 1916, affirmed, with $10 costs.