38 Misc. 139 | N.Y. App. Term. | 1902
A motion was made by defendant before Justice Bolte to open a default taken before him, which motion was denied. While this order, denying a motion to open a default was not appealable, still defendant could have appealed from the judgment, taken by default, and, if, he could have shown manifest injustice, and satisfactorily excused his default, this court would have set aside the judgment, and ordered a new trial, upon such terms as might be proper. Code C. P., § 3064.
The defendant, however, did not do this, hut applied for a reargument of the motion, to open the default, to Justice Eoeseh, who had succeeded Justice Bolte in the second district of the Municipal Court. Justice Eoeseh allowed a reargument, and granted defendant’s motion to open the default, and vacated the order of Justice Bolte denying the motion to open the default thus overruling the decision of Justice Bolte. Ho application was made to Justice Bolte for leave to renew the motion, nor for a reargument of the same. One justice of the Municipal
In the case at bar, the defendant’s time to appeal from the judgment entered on default has expired, and defendant will be without redress if the order appealed from cannot be sustained.
While, as we have already stated, the rule is that one Municipal Court justice cannot review the decision of another justice of that court, and that the unsuccessful party should avail himself, within the proper time, of his remedy by appeal, if he is not content with the original decision against him, still, we are inclined to the opinion that the facts here disclosed are such as to take the case at bar" out of the application of this rule. The decision of Justice Bolte was handed down after the time to appeal from the judgment had expired. It nowhere is denied by plaintiff that the affidavits were submitted on the submission of the motion, and without the knowledge of defendant. The justice- evidently took the affidavits into consideration for they are recited in Justice Bolte’s order denying the motion.
This court should render judgment according to the justice of the case, without regard to technical defects which do not affect the merits. Code C. P., § 3063.
■ We are of opinion that in the case at bar, the ends of justice
The order appealed from is affirmed, with ten dollars costs and disbursements.
Present: Freedman, P. J., Truax and Gildersleeve, JJ.
Order affirmed, with ten dollars costs and disbursements.