In re Peekamose Fishing Club's Trustees — 39 N.Y.S. 124

Majority

p. 124

(5 App. Div. 283.)

In re PEEKAMOSE FISHING CLUB’S TRUSTEES.

(Supreme Court, Appellate Division, First Department.

May 15, 1896.)

Headnote

Appeal—Order Entered by Default.

An order which recites that no one appeared on behalf of one of the parties, and that the motion was then decided after hearing counsel for the other party, is an order granted on default, from which, under Code Civ. Proc. ü 1294, no appeal can be taken.

Appeal from special term, New York county.

Application by the trustees of the Peekamose Fishing Club for dissolution. From an order overruling the report of the referee confirming the report and dissolving the corporation, and from an order resettling the order above mentioned, some of the parties appeal.

Dismissed.

Argued before BARRETT, RUMSEY, WILLIAMS, and INGRAHAM, JJ.

George H. Hart, for appellant Dinmock.

J. Alexander Koones, for appellant Whiton.

David McClure, for respondent.

The appeal from these two orders must be dismissed. The original order, entered on the 26th day of October, appears to have been resettled, and that order was consequently vacated by the order resettling it. By the order as resettled it appears that this appellant was in default. The appellant applied for an adjournment, which was refused, whereupon his counsel withdrew, and the order as resettled contained a recital that no one appeared on behalf of the respondent Whiton, and the motion was then decided, after hearing David McClure, Esq., of counsel for petitioners, and on that motion the order was entered. This was evidently an order granted on default, and from an order entered on default no appeal can be taken. Code, § 1294. This appeal is therefore dismissed, with $10 costs and disbursements. All concur.