5 N.Y.S. 359 | N.Y. Sup. Ct. | 1889
This was an appeal from an order of the Delaware county court, setting aside a judgment entered in a justice’s.court, and awarding the defendants a new trial before another justice of the same county. The order was made under section 3064 of the Code of Civil Procedure, and based upon an assumption by the court that the defendants failed to appear before the justice at the time to which the trial of the action had been adjourned. If the court was justified in assuming that there was such a failure to appear, then we are of the opinion that the order appealed from should be affirmed. If the defendants failed to appear, then it was discretionary with the court whether it would grant a new trial upon the proof before it, as to manifest injustice having been done, and as to the sufficiency of the excuse rendered by the defendants for their default. Such an order should not be reviewed by this court. The rule is well established that the decisions of one court resting in its discretion.are not reviewable by another, unless such review is specially authorized by law. If, however, there was no failure to appear before the justice at the time to which the trial of the case was adjourned, it must follow that the court below bad no power or authority to make the order in question. It will be observed by an examination of the statute that it is only a defendant who has failed to appear before the justice, either upon the return of the summons or at the time to which the trial of the case was adjourned, who is entitled to a new trial as therein provided. Code Civil Proc. § 3064. Hence, whether the defendants appeared before the justice at the time to which the trial was adjourned, within the intent and meaning of this statute, seems to be the controlling question in this case. The defendants contend that, notwithstanding the fact that they were present, both in person and by attorney, at the time to which this action had been adjourned, and that they remained until the case was called, and during the trial, yet, as their attorney refused to answer when it was called, or to take part in the trial, on the ground that it was called too late, although he had agreed to wait until that time, there was a failure of the defendants to appear, within the intent and meaning of the statute. We do not think so. The purpose of this