Rannow v. Hazard

29 Jones & S. 217, 47 N.Y. St. Rep. 291, 61 N.Y. Sup. Ct. 217

Opinion

By the Court.—Freedman, P. J.

Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30, 1892, declared the case on appeal abandoned which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered and has not been appealed from.

Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed we cannot say that the plaintiff established the point by a preponderance of evidence.

The order denying the motion to vacate should, therefore, be affirmed, with $10 costs and disbursements.

Dugro and Gildersleeve, JJ., concurred.