Seifert v. Caverly — 46 N.Y. St. Rep. 420

Majority

p. 420

Catherine S. Seifert, App’lt, v. Richard Caverly, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

Appeal—Discretionary order of county court.

PlaintiS’s complaint was twice dismissed by default, and such defaults opened on motion. On the case being again reached she failed to appear, and the complaint was again dismissed, and a motion to reopen denied by the county court, in which th i action was pending. Held, that the motion was one addressed to the discre'ion of the county court, and its decision could not be reviewed by this court.

Appeal from an order of the county court of Erie county-, dated January 29, 1892, denying the plaintiff’s motion to open a default judgment, entered on the 25tn day of September, 1891, dismissing the complaint, with costs.

A. C. De Witt, for app’lt; Charles E. Forsyth, for resp’t.

This action has suffered many vicissitudes and calamities.

It was commenced in the month of December, 1888, in the Erie county court; when it was reached upon the calendar, the plaintiff failed to appear, and the complaint was dismissed and judgment for costs was entered against the plaintiff. Upon motion, the default was opened, the cause was again placed upon the calendar, .and the complaint was dismissed a second time. Again, a motion to open the default was made and granted, but terms being imposed, the plaintiff appealed to this court from so much of the -order as imposed terms, and that pant of the order was reversed because of an error in the service of the notice of trial; intermediate the granting of the last mentioned order and the decision of the appeal, the case was again put upon the calendar, and a day fixed for its trial by consent of the - plaintiff. She failed to appear at the time fixed, and her complaint was again dismissed and judgment entered for costs.

A motion was made by plaintiff to open the default and set aside the judgment The motion was denied by the county court, and this appeal was taken.

The record shows that plaintiff’s counsel has been very active in efforts to prevent the case from being tried, but has been exceedingly unfortunate in being present in court when the case was reached from time to time.

The last dismissal was entirely regular. The plaintiff’s reasons for not being present in court were submitted to the county court, and were deemed insufficient, and the motion was denied.

It was a motion addressed to the discretion of that court, and we cannot review its decision. Myers v. Riley, 86 Hun, 20 ; Prior v. Prior, 41 id., 613; 5 St. Rep., 249 .

The county court being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers. Stebbins v. Cowles, 30 Hun, 523 ; Wollung v. Aiken, 25 St. Rep., 445 .

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.