Alling v. . Fahy

70 N.Y. 571, 1877 N.Y. LEXIS 656

• Court: New York Court of Appeals
• Decided: September 25, 1877
• Status: Published

Opinion

Per Curiam.

The order in this case is not appealable to this court. The judgment of foreclosure was by default, which, with the subsequent proceedings, were sot aside, and the defendants were allowed to put in a defense, and whether for irregularity or upon the “ broad equities,” or as a favor, it was entirely discretionary with the court below, and hence not appealable.

The counsel for the defendant urged that the order is unjust to the infant plaintiffs, whose money had been invested in good faith in the mortgage, and under circumstances entitling them to protection. If so, it is presumable that the trial will result in their favor; while, if a valid defense exists, it cannot be said in a legal sense to be unjust or inequitable to permit it to be interposed; but whether just or not, it was for the Supreme Court, who have control over judgments rendered in that court, to determine.

No question of power is involved. The General Term could review the exercise of discretion by the Special Term, but this court cannot.

The appeal must be dismissed.

All concur.

Appeal dismissed.