
    Louis Wollowitz, an Infant, by Hyman Wollowitz, His Guardian ad Litem, Respondent, v. The New York City Railway Company, Appellant.
    First Department,
    December 21, 1906.
    Practice - - when order should be resettled to show opposition to motion.
    A litigant cannot be deprived of his right of appeal by the arbitrary refusal of the court to resettle its order so as to show the fact that the order was not made upon default or by consent.
    Appeal by the defendant, The New York City Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered .in the office of the clerk of the county of New York on the 31st day of October, 1906, denying the defendant’s motion to resettle an order entered'in said clerk’s office on the 26tli day of September, 1906.
    
      Bayard H. Ames, Anthony J. Ernest with him on the brief, of counsel [James L. Quackenbush, attorney], for the appellant.
    
      Moses Feltenstein, of counsel [Feltenstein & Rosenstein, attorneys], for the respondent.
   Per Curiam:

This is an appeal from an order of the Special Term denying a motion to resettle an order previously granted by the Special Term allowing the plaintiff to make and serve an amended complaint. An appeal from the original order allowing the amendment was submitted upon, the same day as the appeal now under consideration.

Upon that appeal the first point made by the' respondent was, “ The order not reciting any opposition to the motion, and no appearance on behalf of the defendant, is not appealable.” The order here appealed from was from an order denying a motion to resettle said preliminary order by adding thereto in its recital the words: “And after hearing J. C. Edwards of counsel for defendant in opposition thereto.” That motion was based upon an affidavit in which the attorney stated that he did appear in open court upon the call of said motion and opposed the same in open court and snbípitted a memorandum opposing the same to the justice then presiding. The memorandum handed down, upon the motion for leave to amend, by the learned judge states: “ I think the explanation made by plaintiff excuses the loches complained of by defendant’s counsel in his brief.” This would seem to establish the correctness of the appellant’s claim. v

The motion for a resettlement should have been granted. A litigant cannot be' deprived of his right to appeal by the arbitrary refusal of the court to resettle its order so as to show the' fact that . the order ivas not made Upon his default or consent.

The appeal from the order allowing the amendment will be held and the order denying the motion for a resettlement should be reversed, with ten dollars costs and disbursements, and the motion remitted to the learned justice granting the original order, with instructions to grant the order. . • 1 "

Present — Patterson, P. J.,. Ingraham, McLaughlin, Clarke and Houghton, JJ.

Order reversed, with ten dollars costs and disbursements, and motion7 for resettlement remitted to thé justice granting original order with instructions to grant said motion. Order filed.  