Newcomb v. Burbank

159 F. 569, 1908 U.S. App. LEXIS 5025

Opinion

WARD, Circuit Judge.

This is a motion to vacate an order of the trial judge dismissing the complaint and setting aside the judgment-entered thereon.

Although the judgment is a final one, to which a writ of error lies, the plaintiffs can get no relief thereby, because the Circuit Court of Appeals, unlike the Appellate Division of the .Supreme Court of'New York, has no power to review matters of discretion. The application involves, not merely the opening of a default, but the setting aside of an order deliberately' made by another judge of this court, with a knowledge of all the facts, and resulting in a final judgment. It is certainly not in the course of orderly procedure for me to do this, even if I have the power.

The plaintiffs’ remedy will be to apply to the judge who made the order, or to revive the action brought by their testatrix in the Supreme Court of the state of New York, or to bring a new action.