Beebe v. Nassau Show-Case Co.

The defendant moved, upon affidavits excusing its default, to have the judgment entered in .the action set aside. The plaintiff opposed the motion upon affidavits* and, if we were •authorized to review the question, we should have no hesitancy in •agreeing with the disposition of the case made by the court below. The order, however, is not appealable. The practice in these cases is regulated by statute, and there must be statutory authority for •an appeal, or no jurisdiction is conferred upon an appellate tribunal to review the same. Jacobs v. Zeltner, 9 Misc. Rep. 455 , 30 N. Y. Supp. 238 . The defendant is not aided by section 1367 of the Greater New York Charter, or by Laws 1896, c. 748. Therein is provided •a right of appeal from an order opening a default, and it is required that such order shall recite the grounds upon which the same was .granted. But no authority exists giving the right of appeal from an order which denies a motion to open a default. Under such cirqum.stances the only remedy of the party is by an appeal from.the judgment, as provided in section 3064 of the Code of Civil Procedure. Kellock v. Dickinson, 5 App. Div. 515 , 39 N. Y. Supp. 38 . By virtue ■of the provisions of section 1367, Greater New York Charter, the .article of the Code in which the above section is found is made applicable to appeals from the municipal court. The practice in this ■.respect is correctly set forth in Campbell v. Lumley, 24 Misc. Rep. 196 , 52 N. Y. Supp. 684 . It follows that the appeal should be dismissed.

Appeal dismissed, with $10 costs and disbursements.