Beebe v. Nassau Show Case Co.

41 A.D. 456, 58 N.Y.S. 769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Per Curiam :

The defendant moved, upon affidavits excusing his default, to have 'the judgment entered in the action set aside. The plaintiff opposed the motion upon affidavits, and if we were authorized to review the question, we should have no hesitancy in agreeing with the disposition of the case made by the court below. The order, however, is not appealable. The practice in these cases is regulated by statute, and there must be statutory authority for an appeal, or no jurisdiction is conferred upon an appellate tribunal to review the same. (Jacobs v. Zeltner, 9 Misc. Rep. 455.) The defendant is not aided by section 1367 of the Greater New York charter (Laws of 3897, ■chap. 378), or by section 1367 of chapter 410 of the Laws of 1882, -as amended by the Laws of 1896, chapter 748, made applicable to the Municipal Court of the city of New York by section 1369 of the •Greater New York charter. Therein is provided a right of appeal from an order opening a default, and it is required that such order shall recite the grounds upon which the same was granted. But no -•authority exists, giving the right of appeal from an order which ■denies a motion to open a default. Under such circumstances the ■only remedy of the party is by an appeal from the judgment, as provided in section 3064 of the Code of Civil Procedure. (Kellock v. Dickinson, 5 App. Div. 515.) By virtue of the provisions of ■section 1367, Greater New York charter, the article of the Code in which the above section is found is made applicable to appeals from the Municipal Court. The practice in this respect is correctly set forth in Campbell v. Lumley (24 Misc. Rep. 196).

It follows that the appeal should be dismissed.

All concurred.

Appeal dismissed, with ten dollars costs and disbursements.