Spektorsky v. American New System Carbonating & Dispensating Apparatus Co.

Majority

p. 73

SPEKTORSKY et al. v. AMERICAN NEW SYSTEM CARBONATING & DISPENSATING APPARATUS CO. et al.

(Supreme Court, Appellate Division, First Department.

May 15, 1896.)

Headnote

Judgment—Opening Default—Discretion of Court.

It is within the discretion o£ the court to open a default or to leave the moving party to his remedy by action to enjoin the enforcement of the judgment.

Appeal from special term, New York county.

Action by Hyman Spektorsky and others against the American New System Carbonating & Dispensating Apparatus Company, Peter E. Maimstrom, and others. From an order denying a motion to set aside a judgment entered on defendants’ default, and from an order denying a motion for reargument, defendant Peter E. Maimstrom and others appeal.

Affirmed.

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

B. Tuska, for appellant.

R. M. Robinson, for respondent.

The appeal from the order denying motion for reargument must be dismissed. The motion to open this default was properly denied. It is always in the discretion of the court, in such a case as this, whether the parties shall be permitted to litigate the questions presented by affidavits, or whether they shall be put to an action. It is usually more desirable, where.that course can be pursued, that relief of this kind should be sought by action, where the disputed questions of fact- can be decided upon oral testimony after the cross-examination of the witnesses, and not upon affidavits. The order denying the motion to open the default must therefore be affirmed, without prejudice to the right of the appellants to bring an action to enjoin the enforcement of the judgment, and for such other relief as they may be entitled to.