Rannow v. Hazard — 19 N.Y.S. 1023

Majority

p. 1023

Rannow v. Hazard et al.

(Superior Court of New York City,

General Term.

July 5, 1892.)

Headnote

Appeal from special term.

Action by Rudolph Rannow against Edward C. Hazard and another. From an order denying a motion to vacate an order declaring a case on appeal abandoned, plaintiff appeals.

Argued before Freedman, Dugro, and Gildersleeve, JJ.

Waldorf H. Phillips, for appellant. Hugh Porter, for respondents.

Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30,1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered, and has not been appealed from. Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed, we cannot say that the plaintiff established the point by a preponderance of evidence. The order denying the motion to vacate should therefore be affirmed, with $10 costs and disbursements. All concur.