
    TUCKER v. PFAU.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Appeal from Justice Court—Discretion of County Court.
    Code Civil Proc. § 3064, provides that if an appeal is taken from a justice’s judgment by a defendant who failed to appear, and he “shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment,” and direct a new trial before the same or another justice of the county. Heldi, that the action of the county court on appeal in such case is not reviewable on appeal to the general term of the supreme court.
    ■ Appeal from Erie county court.
    Action by Henry C. Tucker against Henry Pfau. From an order of the county court, to which the case came on appeal from a justice of the peace, granting a new trial to defendant before the justice by whom the judgment appealed from was rendered, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BEADLET, JJ.
    Henry G. Adams, for appellant.
    John E. Hazel, for respondent.
   BEADLEY, J.

It is quite difficult to see in the affidavits on the part of the defendant any satisfactory excuse for his default in appearing before the justice on the day of the trial. It seems to have been assumed on the part of the defendant, without taking the trouble to obtain information on the subject, that the plaintiff had, by his complaint, demanded judgment for a sum exceeding $50, and therefore that the defendant could, by appeal, and demanding it, take a new trial in the county court. Code Civil Proc. § 3068. But as, by Ms complaint, the plaintiff sought to recover a less sum only, and as the defendant alleged no claim, available against that of the plaintiff, for a greater amount than $50, the defendant had no right, by appeal, to take such new trial. Hor did the defendant make it clearly appear that manifest injustice was done him by the judgment. But upon appeal taken from a justice’s judgment by a defendant who has failed to appear at the time of the trial, and who “shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for Ms default, the appellate court may, in its discretion, set aside the judgment,” and direct a new trial before the same or another justice of the county. Code Civil Proc. § 3064. It was by the exercise of the discretion wMch the county court assumed to have that the new trial was granted before the same justice •in the present case; and, while it may seem that the power of the county court was somewhat arbitrarily exercised in granting the new trial, it was nevertheless so much a matter of discretion as not to be the subject of review by another court. Wavel v. Wiles, 24 N. Y. 635; Reilley v. Canal Co., 102 N. Y. 383, 386, 7 N. E. Rep. 427; Tanner v. Marsh, 53 Barb. 438; Thomas v. Keeler, 52 Hun, 318, 5 N. Y. Supp. 359. The cases cited on the part of the plaintiff are mainly those of the county courts on appeals from justices’ judgments, and of the court of common pleas of the city of New York-•on appeals thereto from the district courts of that city, to which appeals the provisions of the statute before mentioned are in like manner applicable. Code Civil Proc. § 3213. And therefore those •cases do not necessarily furnish authority beyond the court of review in which is vested the discretionary power given to it by the provisions of section 3064 of the Code. It cannot be said that the affidavits on the part of the defendant were utterly barren of any facts for the consideration of the county court upon the questions to which its discretion was applicable, and therefore the order must be affirmed. Order of the Erie county court, appealed from, affirmed, with $10 costs and disbursements. All concur.  