
    N. Y. COMMON PLEAS.
    James Walsh agt. Charles Schulz, impleaded, &c.
    
      Appeal—Discretionary orders made by the city court not appealable to the New Yoi'h common pleas.
    
    The common pleas in reviewing orders upon appeals from the city court, like the court 'of appeals in reviewing orders on appeal from the superior city courts, decline to review the discretion exercised by the court below. Where the order involves a question of discretion in the court below it is, therefore, not appealable.
    If an appeal be taken in such a case it will be dismissed.
    
      General Term, May, 1884.
    
      Before Van Brunt, Van Hoesen and Daly, JJ.
    
    Appeal from an order of the city court, general term, affirming an order made by Mr. justice MoAdam opening a judgment entered by default.
    
      J. H. Benn, for appellant.
    
      Charles Wehle, for respondent.
   Van Hoesen, J.

— The language of section 3191 differs in some particulars from that of section 190, but the differences do not affect the matters under consideration. It is well set-tied that with respect to the marine court that the court of common pleas occupies the same position that the court of appeals holds with respect to the supreme court and the superior city courts. The rules that govern the court of appeals in passing upon appeals from the supreme and the superior city courts are applicable to the court of common pleas. This has been universally understood since the decision in McEteere agt. Little (8 Daly, 167) and Schwartz agt. Oppold (74 N. Y., 307). If, therefore, we ascertain the course that would be taken by the court of appeals, if this appeal was before it, we shall have a guide to the decision of the question before us.

The case of Lawrence agt. Farley (73 N. Y., 187) is conclusive upon the point that the court of appeals will not review the discretion of a court of original jurisdiction. In the case cited a judgment by default was entered against the defendant in 1862. In 1874 a judgment for a deficiency was docketed against the defendant, and more than two years afterwards the defendant applied for the opening of the judgment and gave excuses for suffering the default that were satisfactory to the supreme court, which opened the judgment and allowed the defendant to interpose an answer. From this order an appeal was taken to the court of appeals, which dismissed the appeal on the ground that the order was discretionary, and that the court of appeals being a tribunal created for the examination of questions of law (save in a few cases specially provided for) ought to refrain from matters of discretion which are likely to involve intricate controversies respecting matters of fact. To the same effect are Howell agt. Mills (53 N. Y., 331) and Alling agt. Fahy (70 N. Y., 571).

As I have already said the court of common pleas is, with respect to the marine conrt, in the position of an appellate tribunal charged (save a few cases specially provided for) with the sole duty of reviewing questions of law; and the same reason that prevents the court of appeals from reviewing matters resting in the discretion of other courts applies with full force to appeals brought into this court from discretionary orders made by the marine court.

There is nothing in the amendment to section 3191 that introduces a new rule, for nothing in it requires us to review matters of discretion that the marine court has considered.

Again, the order before us was made after judgment, and section 3191 does not authorize an appeal to the court from such an order (Lawrence agt. Farley, 73 N. Y., 189; Bamberg agt. Stern, 76 N. Y., 555).

The last observation is obiter, as is the further one, that the case of Townsend agt. Hendricks (40 How. Pr., 143) would, in my opinion, warrant us in sustaining the appealability of the order, if it were not a discretionary order. I do not discuss the matter, though I have examined it and formed a decided conclusion upon it.

The appeal should be dismissed, with costs.

Van Brunt, J., concurred.  