Lefenfeld v. Adler

51 Misc. 66 | N.Y. App. Term. | 1906

Lbveetritt, J.

Issue was joined on July 17, 1905; there followed a series of adjournments until January 23, 1906. On that day the plaintiff appeared and requested a further adjournment, which was, however, refused, and judgment was rendered dismissing the complaint with costs. Subsequently the plaintiff moved to vacate the judgment and to open the default. From the order denying that mo~ tion this appeal is taken. The plaintiff has mistaken her remedy. There was no default to be opened, hence the denial of the motion was inevitable. The judgment of dismissal was not the result of nonappearance of the plaintiff on the adjourned day, but of the refusál of the justice to grant her request for a further adjournment. That refusal can be reviewed only on an appeal from the judgment, and that appeal has not been taken. Sections 253 and 254 of the Municipal Court Act do not apply.

Appeal dismissed, with ten dollars costs to the respondent.

Gildebsleeve and McCall, JJ., concur.

Appeal dismissed, with ten dollars costs to respondent.