Oppenheimer v. Demuth Glass Manufacturing Co.

Per Curiam. Judgment having been entered against the defendant by default, it moved to vacate the same and for leave to defend. The motion was granted “ on the defendant depositing within three days the full amount of the judgment with the clerk.” Ten dollars costs were awarded plaintiff to abide the event of the action. The defendant appeals from so much of the order as imposed the condition mentioned, “ and from each and every part of said order.” It also recites in its notice of appeal that it intends to bring up for review the judgment entered in favor of plaintiff. The order of vacatur was entered on appellant’s motion. The order is not appealable for two reasons: First, be [460] cause a party cannot appeal from an order entered on his own motion (Raymond v. Tiffany, 115 App. Div. 350-352); Second, Because the order is not one of the class specified in sections 253 and 257 of the Municipal Court Act. Bevins & Rogers App. Term Pr. 62. In Benvenuta v. Candeloro, 43 Misc. Rep. 684, this court said: “Under section 267 no appeal lies in the first instance from an order opening a default and vacating a judgment thereon.” It would seem that, under the provisions of the Municipal Court Act as it now stands, a defendant, who has suffered a default judgment to he entered against him and upon motion has Been allowed to open such default, has no remedy but to comply with the terms imposed as a condition for such favor granted and proceed to a trial of his action. The judgment is not revicwable, because it has becu set-aside. The appeal must he dismissed, with costs. Present: Gildeesleeve, Leventiutt and Erlangeb, JJ. Appeal dismissed, with costs.