Levy v. Warschauer

125 N.Y.S. 625

Opinion

BIJUR, J.

Plaintiffs’ claim was for some $132. Prior to suit brought, defendants tendered $92 in full settlement, which was refused. Plaintiffs then brought this action, but by a clerical error claimed only $40. On the return day the defendants waited until a default had been taken, and then paid into court the sum of $42, being the amount of the judgment and costs.

When the plaintiffs’ counsel became aware of the error, they moved to vacate the judgment, for leave to discontinue the action, and for a direction to the clerk to return to defendants the $42 paid_ in by them. This motion was granted, upon condition that plaintiffs should pay defendants $10 costs and their disbursements. It is from this order that defendants appeal.

The order, not being one of those enumerated in sections 253, 254, 255, or 256 of the Municipal Court act (Laws 1902, c. 580), is therefore not appealable, and the appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.