Csatlos v. Metropolitan Street Railway Co.

67 A.D. 459

Opinion

Van Brunt, P. J.:

This order should be affirmed, but in view of the opinion of the justice below granting the motion it may be proper to say that the giving of leave by the Appellate Division,, upon payment of certain costs, to apply to. the court below to open a default is by no means to be taken by the court below as an intimation that the Appellate Division is of the opinion that the default ought to be opened. The leave may be given because, as the Appellate Division will not pass upon these questions, it thinks that the party in default ought to have his excuse passed upon on the merits. In many instances, where such leave is given, if the Appellate Division passed upon the merits of the excuse offered it would dismiss the appeal.

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

Ingraham, McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.