
    David Foshay, Plaintiff and Appellant, v. Henry C. Drost, Defendant and Respondent.
    1. Where a motion is made to open a default, as a mere.favor to the moving party, an order granting or denying the motion will not be reviewed on appeal.
    2. In such case, if the motion be granted upon terms, the conditions upon which the party obtains the favor will not be reviewed on appeal.
    3. Hence, where, after a trial and verdict for the plaintiff, the plaintiff’s motion for leave to file a reply to the defendant’s counterclaim was denied, unless the plaintiff consented to a new trial, and paid all the costs since the answer: Held, that the terms imposed on the plaintiff were not the subject of appeal.
    (Before Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, March 24th;
    decided, March 31st, 1860.
    This is an action brought to recover money alleged to be due for the employment of the defendant and the charter of his vessel, for a voyage to Virginia for oysters. The answer avers that the plaintiff did not perform his contract, and has not refunded the money received for the purchase of the oysters, but so negligently performed the service that the defendant lost $200 of the money which he furnished to the plaintiff for the purchase of the oysters, and sustained by such negligence further damage to the amount of $250, and prays judgment against the plaintiff, for the said two sums and interest.
    
      To this answer no reply was filed or served.
    The action was brought to trial, and after the plaintiff had rested, the defendant’s counsel insisted that he was entitled to judgment for the amounts claimed by him, on the ground that they constituted a counterclaim, and the plaintiff not having replied thereto they were to be deemed admitted. The motion was overruled, and the defendant having given such proofs as he thought proper, the case was submitted to the jury, who, rejecting the counterclaim and finding against the defendant upon the question of due performance by the plaintiff, rendered a verdict for the amount claimed, with interest.
    The defendant excepted to the ruling, that he was not entitled to judgment for his alleged counterclaim, and to the submission of any question in relation thereto to the jury, insisting that it was admitted by the failure of the plaintiff to reply; and after the verdict, the defendant made a case on which to move for a new trial.
    The plaintiff, after the trial and verdict, moved at Special Term for leave to file a reply nunc pro tunc, as of the time the answer was served. On this motion affidavits were read, containing conflicting statements respecting what transpired at the trial—the affidavit on the part of the plaintiff representing that the parties came to trial prepared, and did actually try all questions upon which the rights of the parties depended; that, although the question whether there was a reply or not was raised, it was done by the Judge upon a claim of the plaintiff that the answer was not itself sufficient to admit proof of negligence as a defense, and not by the defendant’s counsel, who did not suggest that his defense was admitted until after such inquiry was made and it was found that no reply had been filed; that the Judge refused to then give leave to file a reply, on the ground that such leave could not be given at the trial, but suggested that the trial should proceed and the whole question be tried, and that, on motion at Special Term, to be thereafter made, leave to file a reply nunc pro tunc eould be obtained. On the other hand, the defendant’s affidavit represented that, when the plaintiff rested, he moved for judgment for the amount claimed in his answer for the want of a reply; that the Judge refused to grant such order, but offered to the plaintiff his election that a juror be withdrawn and the cause go off the term and so time be given to apply for leave to file a reply, or, if the plaintiff deemed the answer insufficient or a reply to be unnecessary, then to go on and try the cause, and, if he recovered a verdict, have an order that the cause be heard on a case in the first instance at General Term upon the defendant’s exceptions, and that the plaintiff elected to go on and try the cause, and did obtain a verdict; and that the defendant had made a case whereupon to apply to set aside the verdict and for a new trial.
    The plaintiff’s motion for leave to file a reply nunc pro tunc was heard before Mr. Justice Hoffmaft at Special Term, who, on the 1st March, 1860, ordered that the motion be denied unless the plaintiff file his consent to a new trial and pay all the costs since the answer, including $7 costs of motion, within five days after adjustmeiit.
    From so much of the order, as required the plaintiff to consent to a new trial as a condition of granting the motion, the plaintiff appealed.
    
      A. R. Dyett, for the plaintiff (appellant).
    I. The parts of the order in question are appealable: the conditions are oppressive. (5 Cow., 15; 10 Wend., 628; 5 Hill, 516.)
    II. The parts of the order appealed from are erroneous upon principle and authority: 1. There has been a fair trial of the counterclaim. 2. The defendant was not surprised at the trial: he was fully prepared with his proofs, and gave them to the jury. S. If the Judge erred in holding the counterclaim not admitted, no injustice was done, since the jury have found that no counterclaim exists, and if there is no injustice there should be no new trial. 4. The fact that defendant has made a case cannot affect the motion. He has other exceptions. An amendment will be allowed, although the effect will be to supersede a bill of exceptions. (2 Cow., 515; 12 Wend., 228; 2 Hall, 545.) 5. There is no necessity for another trial; and it is, therefore, unjust to require it. Had the defendant suggested the point before the trial, a reply would have been filed. He should not be permitted to lie by, and take advantage of a surprise to the plaintiff on the trial.
    III. Requiring payment of all the costs was also oppressive. Costs of the motion should only have been imposed. The Court below have practically admitted the sufficiency of plaintiff’s excuse, and yet imposed such terms of granting relief as to work a great injustice. (12 Wend., 135; 1 Hill, 118; 7 Cow., 483; 6 id., 360, 590; 4 id., 394, 503; 1 id., 670; 12 J. R., 353; 18 id., 510; Code, § 174.)
    
      John M. Martin, for the defendant (respondent).
    I. The terms on which a discretionary order is granted are not subject of appeal. (3 Code R., 85; 2 id., 41; 10 Barb., 303; 8 Abb., 42.)
    The merits are not involved. (3 Code R., 141; 4 Sandf., 709; 3 E. D. Smith, 210; 6 Duer, 689.)
    H. The Judge had no power to make an order which should deprive the defendant of the benefit of his exception taken on the trial.
    EEL The plaintiff’s application for leave to file a reply assumes that a reply was necessary; that, without it, the counterclaim of the defendant was admitted. The General Term, on the hearing of the ease, will, therefore, grant a new trial for error in not allowing that counterclaim on the former trial. This is, therefore, an attempt to avoid the effect of the election voluntarily made at the trial by the plaintiff, and deprive the defendant of a new trial to which, as matter of law, he is entitled.
    IV. The plaintiff was bound to know what was' in the pleadings ; and no claim that he was surprised will be listened to. (3 Wat. & Gra. on Hew Trials, 963, and cases cited.)
    The appeal should be dismissed.
   By the Court—Woodruff, J.

We regard it as well settled that, where a motion is made to the Court to open a default, as a mere favor to the moving party, the power of the Court being conceded, an order, either granting or denying such motion, will not be reviewed on appeal. In such case, no substantial right is violated; for relief from the default in such case is not a matter of right. The motion does not involve the merits; for the opposing party being in all respects regular, no rule of law or practice has been violated, and the merits of the action are not the questions in any wise -to be determined on such a motion. (Bolton v. Depeyster, 3 Code R., 141; Fort v. Bard, 1 Comst., 43; Mead v. Mead, 2 E. D. Smith, 223.)

In Thompson v. Starkweather, (2 Code R., 41,) the precise point that “ an order refusing leave to reply after the time for replying had passed, is not the subject of appeal to the General Term,” was adjudged.

If these cases be taken as our guide, then it is clear that, in this case, if the Justice at Special Term had refused the plaintiff’s motion for leave to file a replication nunc pro tunc, as of a day before the trial, the Court in General Term would not review the order, but an appeal therefrom would be dismissed. And it is quite obvious that, if we could not hear an appeal b)r the plaintiff from an unqualified denial of the motion, we cannot on his appeal review an order granting it upon terms. If such order of denial be not appealable, much less is an order imposing terms of granting the favor.

Without further discussion of the general question, it must suffice to say that it is settled in this Court that where a motion is addressed to the discretion of the Court by a party seeking a favor, the terms upon which the favor is granted are not a subject of appeal. It was so distinctly held in Gale v. Vernon, (4 Sandf., 709,) where the plaintiff was in default for not bringing his cause to trial, and was relieved upon terms of paying costs. And in Jacobs v. Marshall, (6 Duer, 689,) where a defendant was required to waive the defense of usury as a condition of opening a default for want of an answer, we held that, in respect of the conditions on which the default was opened, the decision at Special Term was final, and could not be reviewed on appeal. A default in not filing a reply, stands upon no more favorable footing for the party in default. (See also 3 E. D. Smith, 210.)

The cases cited, (5 Cow., 15; 10 Wend., 628,) in which the imposition of extraordinary terms, as a condition of putting off a cause at the Circuit, was reviewed in the Supreme Court, are not in conflict with these views. When the practice in a particular case has been long settled, it becomes binding as the rule governing the subject. Such was the practice respecting the putting off of causes at the Circuit, and it was because the Court held that, when the applicant brought himself within the rule, the Circuit Judge no longer had a discretion to exercise; that they held the imposition of unusual terms erroneous.

Reasons might be suggested why the order is not justly characterized as a harsh order. Especially since the plaintiff voluntarily went on with his trial, in spite of the objection, and refused the offer of the Judge to permit a juror to be withdrawn; but it is sufficient to say that we do not review the order, in respect to the terms imposed, as a condition of granting a favor.

The appeal should be dismissed.  