Stransky v. Weichman , 53 N.Y.S. 549 ( 1898 )

Olcott, J.

When this matter was before the Appellate Term of the Supreme Court, that tribunal, in reversing a former order of this court which was found to be erroneous in some of its provisions, gave permission to the defendant Weichman, upon payment of the costs and disbursements awarded against him, to renew his application to the Special Term of this court to open the default taken against him and for an extension of time within which to make a certain surrender.

In-pijrsuance of such permission, said defendant paid such costs and disbursements to the amount of $158.50, and made such application to our Special Term, and the justice there presiding granted said application in the exercise of that discretion which the Appellate Term held was vested in him.

This appeal is "taken by the plaintiff from the order so granted.

Counsel for the appellant furnishes a forcible argument against the authority of this court to grant the extension of time for malting the said surrender; but the decision of the Appellate Term, in giving the permission above noted, seems to have passed upon that objection and disapproved it.

He also objects to the omission of costs to his client in the order now appealed from, but'our learned Special Term justice appears to have been guided in this regard, within the exercise of his discretion, by the fact that the defendant has already paid to the plaintiff the above-mentioned large bill of costs.

• The fear of counsel for the appellant that this client will, unless the order in question be reversed, be remediless because of the loss of the original undertaking, is dispelled by the offer contained in respondent’s points X, XIY (which offer may be' considered to have the same sanction and force as though made in open court), that a copy of the undertaking may be used during the pendency and upon the trial of this cause in place of the original.

Counsel for the appellant further contends that- at the time of the rendition of judgment, there was in reality no default, but a consent to judgment, given in open court. •

The evidence is conflicting upon this point, but here again we feel precluded from a consideration of the appellant’s argument by the opinion of the Appellate Term, which, after an examination of the whole record, found that there had been a default and referred the question of opening it to- this court.

We have not overlooked, that" portion of the opinion of the Appellate Term which suggests that certain matters which bear against the defendant’s prayer for relief “ are at least deserving of weighty consideration,” but there is nothing before us to suggest that they did not receive such consideration in our court below.

The order appealed from should be affirmed, with $10 costs to the respondents, to abide the event.

Conlan, J., concurs.

Order affirmed, with $10 costs to respondents, to abide event.