Candeloro v. Benvenuta — 88 N.Y.S. 357

Majority

p. 357

CANDELORO v. BENVENUTA.

(Supreme Court, Appellate Term.

May 19, 1904.)

Headnote

1. Default—Application to Open—Appeal.

Under Municipal Court Act (Laws 1902, p. 1563, c. 580) § 257, authorizing the court to open a default on motion, no appeal lies from a default judgment in that court.

2. Same—Obder Opening Default.

Under the express provisions of Municipal Court Act (Laws 1902, p. 1563, c. 580) § 257, no appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon.

11. See Appeal and Error, vol. 2, Cent. Dig. § 885.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Francesco Paolo Candeloro against Lina Benvenuta. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Dismissed. *■

Argued before FREEDMAN. P. J., and TRUAX and SCOTT, JJ.

J. J. Freschi, for appellant.

M. Helfand, for respondent.

This is an appeal from a judgment taken against the defendant upon her default in the Municipal Court and from that part of an order imposing terms as a condition for vacating the judgment and opening said default. Under the provisions of the Municipal Court act we have held that, when a defendant has permitted a judgment to be taken against him by default, no appeal lies therefrom, the remedy being to move to open such default under section 253 (Laws 1902, p. 1562, c. 580). Brown v. Bouse (Sup.) 86 N. Y. Supp. 240 ; Edelson v. Epstein (Sup.) 58 N. Y. Supp. 334 . The defendant herein made a motion to open her default, which was granted upon terms. Under section 257 no appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon. It would seem that under the provisions of the Municipal Court act as it now stands the defendant, who has suffered a default judgment to be entered

p. 358

against him, and upon motion been allowed to open such default, has no remedy but to comply with the terms imposed as a condition for such favor granted, and proceed to á trial of his action. We have, however, examined the record herein to the extent of enabling us to say that the terms imposed in this case as conditions upon which the defendant’s default should be opened-were not an abuse of discretion in the trial court, but were in fact reasonable.

Appeal dismissed, with costs.