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Margolys v. Mollenick

94 N.Y.S. 301 Court N.Y. App. Term Decision date 1905-06-22 English

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p. 301
MARGOLYS et al. v. MOLLENICK.
(Supreme Court, Appellate Term.
June 22, 1905.)

Headnote

Order Opening Default—Appealability.
Under the express provisions of 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.
[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, §§ 758, 766.]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Henry Margolys and another against Sarah Mollenick From a judgment for defendant, plaintiffs appeal.
Appeal dismissed.
Argued before SCOTT, P. J., and DUGRO and MacEEAN, JJ.
C. Soble, for appellants.
C. Klein, for respondent.

Unusual, or, rather, extraordinary in the sense of being contrary to the Code and rules regulating procedure, as is granting a motion to open a default already denied by one justice and brought without leave before another upon similar and insufficient papers at best, this court may not entertain this appeal, be

p. 302
cause, under the present statute, no appeal may lie in the first instance from an order opening a default and vacating a judgment entered therein. Section 257, p. 1563, c. 580, Laws 1902.

Appeal dismissed, without costs.