Csatlos v. Metropolitan Street Railway Co. — 73 N.Y.S. 981

Majority

p. 981

CSATLOS v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

January 10, 1902.)

Headnote

Judgment—Opening Default.

The giving of leave by the appellate division to apply to the court below to open a default does not indicate that, in the opinion of the appellate division, the default ought to be opened.

Appeal from special term, New York county. „

Action by William Csatlos, an infant, against the Metropolitan Street Railway Company. From an order granting a motion to open a default, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, IN-GRAHAM, and LAUGHLIN, JJ.

C. Seasongood, for appellant.

T. H. Lordj for respondent.

This order should be affirmed; but in view of the opinion of the justice below granting the motion, it may be proper to say that the giving of leave by the appellate division,, upon payment of certain costs, to apply to the court below to. open a default, is by no means to be taken by the court below as an intimation that the appellate division is of the opinion that the default ought to be opened. The leave may be given because, as the appellate division will not pass upon these questions, it thinks that the party in default ought to have his excuse passed upon, on the-merits. In many instances where such leave is given, if the appellate division passed upon the merits of the excuse offered it would dismiss the appeal.

The order should be affirmed, with $io costs and disbursements.. All concur.