Rannow v. Hazard — 47 N.Y. St. Rep. 291

Majority

p. 291

Rudolph Rannow, App’lt, v. Edward C. Hazard et al., Resp’ts.

(New York Superior Court, General Term,

Filed July 5, 1892.)

Headnote

1. Appeal—Case—Abandonment.

An order declaring a case on appeal abandoned is not a decision that the appeal itself is abandoned, but the appellant is free to prosecute it upon the judgment roll.

2. Same.

Upon a motion to vacate such an order the appellant is bound to satisfactorily excuse his default.

Appeal from an order denying plaintiff’s motion to vacate an ■order declaring case on appeal abandoned.

Waldorf H. Phillips, for app’lt; Hugh Porter, for resp’ts.

—Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30, 1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered and has not been appealed from.

Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed, we cannot say that the plaintiff established the point by a preponderance of evidence.

The order denying the motion to vacate should, therefore, be affirmed, with ten dollars costs and disbursements.

Dugro and Gildersleeve, JJ., concur.