Browning v. New York Leasing Co.

MacLEAN, J. The defendant appeals from two • orders, one final and in default in a summary proceeding, which is not appealable (Catalano v. North British & Mercantile Ins. Co., 50 Misc. Rep. 536, 99 N. Y. Supp. 524), and the other an order denying its motion to open the default, which is appealable (Municipal Court Act, Laws 1903, p. 1563, c. 580, § 357). The motion to open the default was addressed to the discretion of the court, and was made, not because of defense upon merit, but because of an asserted counterclaim theretofore interposed as claim in an action in another court for the recovery of rent. Objecting to the petition because some under tenants were not properly parties and disclosing no interest thereto, its objection might and may have appealed to the mind of the justice below, the exercise of whose discretion was invoked, as a matter largely of fence foretime, in view of the near approach and opportunity for the collection of another month’s rent. That order should stand. The appeal from the final order is dismissed, with $10 costs to. the respondent, and the order denying the motion to open the default is affirmed, with costs. GILDERSLEEVE, P. J., concurs. SEABURY, J., concurs in result.