Proctor & Gamble Distributing Co. v. Garson

159 N.Y.S. 893

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 26, 1916
• Status: Published

Opinion

PER CURIAM.

[1, 2] The defendants were sued as copartners, the defendant Wiener alone being served. She suffered a default, and judgment was taken against her. Her default was subsequently opened; her claim being that she was not, and never had been, a co-partner with the other defendant or connected in business, with her. As a condition of opening such default, she was required to and did deposit the amount of the judgment with the clerk of the court, which was done by her alone and so indicated on the docket by the clerk. Upon the subsequent trial, the court decided that she was not a member of the copartnership, and judgment was rendered dismissing the complaint as against her. She thereafter moved for an order directing the clerk to pay to her the money deposited by her as aforesaid, and, from an order granting this motion, the plaintiff appeals.

There is no authority in the Municipal Court Code for an appeal from order of this character. Section 154 of the Municipal Code governs appeals from orders, and an order of this kind can only be reviewed upon an appeal from a judgment. It may be said, however, that the disposition of the motion by the lower court seems to have been correct.

Appeal dismissed, with $10 costs.