Davis v. Solomon — 53 N.Y.S. 404

Majority

p. 404

DAVIS v. SOLOMON et al.

(City Court of New York,

General Term.

August 2, 1898.)

Headnote

Appeal—Review—Opening Depatjlt.

The judicial discretion exercised by the court, upon opposing affidavits, in opening a default and fixing the terms, cannot be reviewed on appeal.

Appeal from special term.

Action by Solomon Davis against Morris Solomon and others. From an order granting a motion opening a default, plaintiff appeals. Affirmed.

Argued before CONLAN and OLGOTT, JJ.

Fromme Bros., for appellant.

Blumenstiel & Hirsch, for respondents.

This is an appeal from an order granting a motion opening a default on the payment of $10 costs, and vacating and setting aside the judgment as to the defendant Solomon. The appellant complains of the insufficiency of the affidavits used on the motion, and also of the terms imposed as a condition for opening the default. Affidavits were read on both sides, and the court, in opening the default and fixing the terms, exercised a judicial dis

p. 405

cretion which cannot be reviewed on appeal. Traitteur v. Levingston (Super. N. Y.) 13 N. Y. Supp. 603 ; Spektorsky v. Apparatus Co., 5 App. Div. 621 , 39 N. Y. Supp. 73 .

Order appealed from affirmed, with costs.

OLCOTT, J., concurs.