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Gale v. Vernon

6 N.Y. Super. Ct. 709 4 Sandf. 709 Court N.Y. Super. Ct. Decision date 1852-03-06 English

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p. 709
Gale v. Vernon.

Headnote

An order imposing terms as a condition of relief from a default, is not appealable in respect of such terms; e. g.: on giving a plaintiff leave to stipulate, when through his default the defendant is entitled to judgment as in case of a nonsuit.
A plaintiff in such case should give the required stipulation, and if, by reason of facts beyond his control, he cannot comply with it, should then set up such facts in answer to the defendant’s motion founded on his omission to comply.
(Before Oakley, Cm J., and Sandfobd and Campbell, J. J, all the Justices concurring.)
March 6, 1852.
Appeal from an order at chambers, granting a motion for judgment as in the case of nonsuit, unless the plaintiff should
p. 710
stipulate to try tbe cause at tbe next term. Tbe defendant was entitled to his motion according to the practice of the court, and the plaintiff was permitted to stipulate as a term on which he should be relieved. The plaintiff, in resisting the motion, read affidavits tending to show that by reason of the residence of his witnesses at New Orleans, he would be unable to try his cau'se at the then next term. On the appeal being moved, it was objected that the terms on which plaintiff was relieved from an acknowledged default, were not the subject of an appeal.
M Sandford', for the plaintiff.
D. Lord, for the defendant.

We consider that orders of this kind, relieving a party from a default on certain terms, are not appeal-able in respect of the terms imposed. The party is not entitled to relief in such cases as matter of right. The judge in his discretion allows him to be relieved on certain conditions. These are matter of favor purely, not of right, and are exclusively 'discretionary with the judge.

In this case, the plaintiff’s proper coufse was to stipulate as required, and on the defendant’s moving for judgment on his default at a subsequent term, then to present his matters of excuse in answer to the motion founded upon his neglect.

Appeal dismissed.