Steindler v. American Bonding Co.

Gildersleeve, J. There are two appeals in this case: One from a judgment entered against the defendant upon an inquest and an order denying its motion to open its default, and one from an order denying a reargument of the motion made to open such default. A judgment taken by default is not appealable. Kerr v. Walter, 104 App. Div. 45; Levenson v. Arnold, 49 Misc. Rep. 635. An appeal, however, lies from an order denying a motion to open a default. Schrenkensen v. Kroll, 85 N. Y. Supp. 1072. An examination of the affidavits used upon the motion to open the default of defendant leads ns to the conclusion that the motion should have been granted and the defendant permitted to have its day in court. The appeal from the order denying the motion for reargument must be dismissed. Such an order is not an appealable one. Leavitt v. Katzoff, 43 Misc. Rep. 26. Appeal from judgment dismissed with ten dollars costs. [115] Order denying motion to open default reversed with costs and case remanded to Municipal Court for trial. Appeal from order denying motion for reargument dismissed with ten dollars costs. Costs of one party to be offset against costs in favor of the other. Fitzgerald and Davis, JJ., concur. Appeal dismissed with ten dollars costs; order denying motion to open default reversed with costs and case remanded to Municipal Court. Appeal from order, denying motion for reargument dismissed with ten dollars costs of one party to be offset against costs in favor of the other.