Muldoon v. Day

146 A.D. 873, 130 N.Y.S. 513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1911
• Status: Published

Opinion

Per Curiam:

Appeal from an order opening plaintiff’s default in serving case on appeal and extending the time for sueh servipe. In our opinion it was an injudicious exercise of discretion to grant the order appealed from. The plaintiff was guilty of gross laches, which is entirely unexplained and unexcused. .For this reason the motion should have been denied. (Gamble v. Lennon, 9 App. Div. 407; Martin v. McCurdy, 120 id. 665.) The respondent contents herself upon this appeal by advancing the untenable proposition that as the order appealed from is a discretionary one no appeal lies to this court. Counsel forgets that this court is a branch of the Supreme Court, and vested with the jurisdiction vested in the Supreme Court, 'and that in its. appellate capacity it possesses, and not infrequently exercises, jurisdiction to review the discretion of the Special Term. This seems to Us to be a cas.e in which we ought to exercise that discretion. The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. .