
    In the Matter of Morris Lorberblatt, Petitioner, against Miles F. McDonald, a Justice of the Supreme Court of the State of New York, et al., Respondents.
   Proceeding in the nature of mandamus to compel respondent McDonald, or any other Justice to whom the matter might be referred, to render judgment in favor of petitioner and against respondent Gerst in an action in the Supreme Court, Kings County, in which petitioner is the plaintiff and respondent Gerst is a defendant, to refer the matter for inquest and an assessment of damages, and to vacate two orders of said Justice entered in the Supreme Court. Petitioner’s motion for an order directing the entry of a judgment and an assessment of damages against respondent Gerst for his alleged default in answering, and for other relief, and petitioner’s motion for reargument were made as cross motions to motions by respondent Gerst and the other defendants in the Supreme Court action for the dismissal of the complaint. Respondent McDonald made a motion, prior to answering, to dismiss the petition herein upon the ground that it affirmatively appears from the petition that it does not state facts sufficient to entitle petitioner to the relief prayed for or to any part thereof or to any other relief (Civ. Prac. Act, § 1293). Motion to dismiss petition granted, with $50 costs and disbursements. The determination as to whether respondent Gerst was in default was a judicial determination. The denial of petitioner’s cross motion for an order directing the entry of a judgment and an assessment of damages against respondent Gerst is not subject to review by an article 78 proceeding in the nature of mandamus (Civ. Prac. Act, § 1285, subds. 1, 4; see, e.g., Matter of McBride v. Murray, 72 Hun 394; Matter of 609 Holding Corp. v. Burke, 202 Misc. 709, affd. 281 App. Div. 678; cf. People ex rel. Allen v. Murray, 2 Misc. 152, 154, affd. 138 N. Y. 635). Present — Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ.  