Spektorsky v. American New System Carbonating & Dispensing Apparatus Co.

5 A.D. 621, 39 N.Y.S. 73

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1896
• Status: Published

Opinion

Per Curiam:

The appeal from the order denying motion for reargument must be dismissed. The motion to open this default was properly denied. It is always in the discretion of the court in such a case as this whether the parties shall be permitted to litigate the questions presented by affidavits, or whether they shall be put to an action. It is usually more desirable, where that course can be pursued, that relief of this kind should be sought by action where the disputed questions of fact can be decided upon oral testimony after the cross-examination of the witnesses, and not upon affidavits. The order denying the motion to open the default must, therefore, be affirmed, without prejudice to the right of the appellants to bring an action to enjoin the enforcement of the judgment and for such other relief as they may be entitled to. Present — Barrett, Rumsey, Williams, Patterson and JJ.