Benvenuta v. Candeloro

Appellate Terms of the Supreme Court of New York

Benvenuta v. Candeloro

43 Misc. 684, 88 N.Y.S. 357

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1904

StatusPublished

Cited by3 cases

This text of 43 Misc. 684 (Benvenuta v. Candeloro) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benvenuta v. Candeloro, 43 Misc. 684, 88 N.Y.S. 357 (N.Y. Ct. App. 1904).

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Opinion

Per Curiam.

This is an appeal from a judgment taken against the defendant upon her default in the Municipal Court of the city of Eew York, and from that part of an order imposing terms as a condition for vacating the judgment and opening said default.

Under the provisions of the Municipal Oourt Act, we have held that when a defendant has permitted a judgment to be taken against him by default, no appeal lies therefrom, the remedy being to move to open such default under section 253. Brown v. Bouse, 43 Misc. Rep. 72; 86 N. Y. Supp. 240; Edelson v. Epstein, 27 Misc. Rep. 543; 58 N. Y. Supp. 334.

The defendant herein made a motion to open her default, which was granted upon terms. Under section 257 no'appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon. It would seem that, under the provisions of the Municipal Court Act as it now stands, a defendant, who has suffered a default judgment to be entered against him and'upon motion has been allowed to open such default, has no remedy but to comply with the terms imposed as a condition for such favor granted and proceed to a trial of his action. We have, however, examined the record herein to the extent of enabling us to say that the terms imposed in this case, as conditions1 upon which the defendant’s default should be opened, were not an abuse of discretion in the trial court, but were in fact reasonable.

Present: Freebman, P. J., Truax and Scott, JJ.

Appeal dismissed, with costs.

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Per Curiam.

This is an appeal from a judgment taken against the defendant upon her default in the Municipal Court of the city of Eew York, and from that part of an order imposing terms as a condition for vacating the judgment and opening said default.

Under the provisions of the Municipal Oourt Act, we have held that when a defendant has permitted a judgment to be taken against him by default, no appeal lies therefrom, the remedy being to move to open such default under section 253. Brown v. Bouse, 43 Misc. Rep. 72; 86 N. Y. Supp. 240; Edelson v. Epstein, 27 Misc. Rep. 543; 58 N. Y. Supp. 334.

The defendant herein made a motion to open her default, which was granted upon terms. Under section 257 no'appeal lies in the first instance from an order opening a default and vacating a judgment entered thereon. It would seem that, under the provisions of the Municipal Court Act as it now stands, a defendant, who has suffered a default judgment to be entered against him and'upon motion has been allowed to open such default, has no remedy but to comply with the terms imposed as a condition for such favor granted and proceed to a trial of his action. We have, however, examined the record herein to the extent of enabling us to say that the terms imposed in this case, as conditions1 upon which the defendant’s default should be opened, were not an abuse of discretion in the trial court, but were in fact reasonable.

Present: Freebman, P. J., Truax and Scott, JJ.

Appeal dismissed, with costs.

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43 Misc. 684, 88 N.Y.S. 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benvenuta-v-candeloro-nyappterm-1904.

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