Keeler v. Dennis — 5 N.Y. St. Rep. 479

Majority

p. 479

William Keeler, Resp’t, v. Maria Dennis, Appl’t.

(Supreme Court, General Term, Fifth Department,

Filed January, 1887.)

Headnote

Pbactice — Opening default — Effect of refusal of application to POSTPONE TRIAL.

The right to set aside a default is not affected by the fact that the trial court refused to postpone the trial. The motion not being regarded as an appeal from that order.

Appeal from an order of the Monroe special term, opening a default taken at the Cayuga circuit, and setting aside the verdict there rendered and the judgment entered thereon.

J. <f T. H. Courtney, for appl’t; A. P. Smith, of counsel. S. Hdwin Pay, for resp’t; II. V. Howland, of counsel.

The affidavits used for and against the motion to open the default presented a conflict in some respects which the special term was called on to decide, and as the decision cannot be said to be clearly against the weight of evidence, it is conclusive. Assuming as we must, therefore, that the moving affidavits are substantially true, a satisfactory case was made for granting the motion, the details of which it is not necessary to state.

The order made at the circuit refusing the plaintiff’s application to postpone the trial, does not stand in the way of the motion to open the default taken subsequently at the same circuit. The moving papers present some material facts in addition to those stated on the application to postpone. And it has been held that the right to set aside a default is not affected by the fact that the trial court refused to postpone the trial, the motion not being regarded as an appeal from that order. Cahill v. Hilton, 3 1 Hun, 114 ; S. C. aff’d, 96 N. Y., 675 .

The order should be affirmed with ten dollars costs and disbursements.

Barker, Haight and Bradley, JJ., concur.

So ordered.