
    McWalter B. Sutton, Respondent, v. Chester A. Bayles, Appellant.
    (Supreme Court, Appellate Term,
    February, 1911.)
    Municipal Courts: Procedure — Relief from default — Terms: Review — Order imposing unauthorized terms for relief from default; Mode of taking; Waiver of right to appeal.
    Upon opening a default under section 253 of the Municipal Court Act of the city of New York, the court or a justice thereof may not impose terms other than as specified in section 256 of said act.
    If the opening of a default is conditioned upon terms other than as specified by said section 256, or if the terms imposed are coupled with such requirements as to practically amount to a denial of the motion and the court denies the motion unless such terms are complied with, an appeal lies from the order entered, though under section 257 of said act no appeal lies from an order opening a default.
    Where a judgment is taken by default against an attorney for misappropriating the sum of $200 of the funds of his client and the default is opened under section 256 of the Municipal Court Act of the city of New York on condition that he file an undertaking with sureties to secure any judgment recovered against him with costs, or deposit the amount of the judgment and costs in court within two days, the limitation of time is unjust in view of the nature of the action and the amount of the judgment, it appearing that defendant filed an affidavit of merits stating that the complaint was false and that he had fully accounted to plaintiff for all moneys received from him and the order entered on a denial of the motion is appealable.
    
      That the defendant endeavored to comply with the terms imposed by the said order did not deprive him of the right to appeal therefrom.
    It was not necessary that the notice of appeal should particularly specify any portion of the order appealed from as, in the absence of specification, the whole order was reviewable.
    A judgment taken by default is not appealable.
    Lehman, J., dissents.
    Appeal by the defendant from a judgment and order of the Municipal Court of the city of New York, borough of Manhattan, third district.
    Chester A. Bayles, appellant, in person.
    Max Brown, for respondent.
   Hendrick, J.

On June 2J, 1910, an order was entered in this action in the Municipal Court, which order, .after the usual formal recitals, reads as follows: “ Ordered that the motion to open the default and to vacate and set aside the judgment taken herein be and the same is hereby granted, upon condition that the defendant file an undertaking, with sufficient sureties, to secure the amount of the judgment and costs, or deposit the amount of the judgment and costs into court ón the 29ifih day of June, 1910, and serve a copy of the same on the attorney for the plaintiff on said day, and that the sureties justify on the 30th of June, 1910, at nine o’clock in the forenoon of that day, at the above-named court, and that, if such sureties be found sufficient, the case is to be tried on said 30th day of June, 1910; and it is further ordered that, if said sureties are found insufficient, or default is made in any of the conditions contained herein that the motion to open the default be and the same hereby is in all respects denied and the stay contained in the order to show cause be vacated and set aside.”

The defendant failed to comply with the conditions imposed by the terms of the order and appealed therefrom. The order, it will be observed, denied the motion, absolutely, unless the conditions were complied with. The respondent strenuously contends that it is -an order opening 'a default ■and that no appeal will lie from such an order.

In the case of Thompson v. The Hudson Building, 59 Misc. Rep. 510; affd., 126 App. Div. 912, this court in a similar ease said: “ The defendant appealed from the order after failure to comply with its terms, the order then becoming one' denying his motion to open his default -and therefore appealable.”

In the case of Lee v. Revolving Airship Tower Co., 127 App. Div. 36, the Appellate Division in the Second Department, in speaking of an order which opened a default upon certain conditions, said: There is another view in which I think we may consider this appeal. It seems to me from a reading of the sections which have been mentioned, that it was the intent of the Legislature to -deny the right of appeal by the party prosecuting in a case when the court has opened the defendant’s default. Certainly an appeal would lie by a defendant from an order denying its motion to open a default suffered by it. In effect that is this case; the conditions imposed for opening the default are not only such as the Municipal Court has no power to grant (Sec. 256, Mun. Ct. Act) but are in the nature of things so harsh and unjust as to he a virtual denial of the motion.”

In Kramer v. Horowitz, 111 N. Y. Supp. 697, an order opening -a default was treated as a denial of the motion; and, as the condition imposed was within the provisions of section 256 -of the Municipal Court Act, the order appealed from was affirmed.

In the case of Eppoletto v. Zuhr, 60 Misc. Rep. 86, an order -opening a' default which did not vacate the judgment, and also imposed alleged onerous terms, was appealed from; and this court -entertained the appeal -and modified the order. To the same effect are the cases of Klein v. Speigel, 63 Misc. Rep. 259, and American Mfg. Co. v. Weintraub, 119 N. Y. Supp. 230.

The Municipal Court Act (§ 253) has given power to that court, or a justice thereof, to -open defaults, and has also prescribed the terms which may be imposed -as- a condition for -opening such defaults. § 25 6. 27o other terms or conditions can be required of the defendant than those specified in that section. “ Further than this the court cannot go.” Gelb v. Cuff, 47 Misc. Rep. 165, and Thompson v. The Hudson Building, supra. If, then, the order opening a default complies with the statute and imposes only such terms as are therein specified, the plaintiff cannot appeal (§ 257); and the defendant, having invoked the favor of the court and it having been granted, cannot complain 'but must comply with the conditions imposed. If, however, the court or a justice in exercising his authority to open a default has exceeded the limit laid down in the statute, and as a condition has imposed terms other than those therein named; or, if it has coupled those terms with such requirements as to their compliance as to practically amount to a denial of the motion and has denied the motion unless such terms are complied with, an appeal from such an order will lie. Otherwise, the defendant would have no redress from an order which imposed the most harsh and unjust terms, or which required proper and legal terms to be performed in such a manner or within a time which would render compliance therewith impossible. The order in the case at bar was a self-operative order and needed no further action of the court, in case the defendant failed to comply with its provisions (Mahon v. Mahon, 62 App. Div. 262; Koransky v. Greenberg, 136 App. Div. 644) ; and the subsequent entry of a formal order denying the motion was not necessary. The question to be determined in this case is whether or not the order under consideration was such as to practically deny the defendant the relief sought. Although the record is largely composed of matters occurring after the granting of the order appealed from, none of those matters can be made a basis for determining this appeal. Section 256 of the Municipal Court Act, after providing for the imposition of not exceeding ten dollars costs for opening a default, further provides: “ It may as a condition for opening any default * * * order any defendant in default to deposit the amount of the judgment with the clerk of the court or to give an undertaking with sufficient sureties to the effect that s-uch defendant will not sell, etc. * * * and that such defendant or his sureties will pay the amount of -any judgment recovered against such defendant in su-eh action.” This section does not provide for the number of the sureties to be furnished, nor does this or any other section of the Municipal Court Act fix the time in which the sureties in such an undertaking must justify. The order appealed from was granted after -a hearing upon the motion had on June twenty-seventh. The defendant was required to file the undertaking on June twenty-ninth, and on the same day served a copy on the plaintiff’s attorney. The sureties were required to justify on June thirtieth and, if found sufficient, the trial was to be had on that day, or, if found insufficient, the motion was to be denied. In other words, the defendant was required to obtain sureties, get the undertaking executed, the -affidavits of each surety made and verified, -file the undertaking with the clerk of the -court, serve a -copy upon plaintiff’s -attorney, procure the attendance of the sureties in court, take their examination -and, if -they were found responsible, then proceed with the trial of the case, which must of course have been prepared in the meantime, and to do -all this in less than three days, from the time the order was made. The -object of an undertaking in such a case is to secure the plaintiff for any judgment he may eventually recover. It is for the same purpose -as an undertaking given to stay an -execution upon appeal. In the latter case, the Municipal Court Act (§ 815) provides that, when exceptions to the sufficiency of sureties are served, the -appellant has five days in which to procure their justification or to -supply new sureties. Reasoning from analogy, it would s-eem that the defendant should have at least an equal time in which to obtain sureties and to procure their justification upon the opening of -a default; and it is hard to conceive how the plaintiff would have been harmed thereby. In further considering whether the terms of the' order are onerous or not, we may -ascertain the cause of -action, the amount of the judgment -and the alleged merit of the defense. The defendant is -an .officer of this court. He i-s charged in the complaint with misappropriating the funds of his client to the -amount of $2-00-. The judgment -authorized the arrest -and imprisonment of the -defendant. The charge against him is a most serious one and, if true, the effect of the judgment might be disastrous and far reaching. The defendant filed an 'affidavit of merits on his motion and -also testified therein that the charge made against him in the complaint was false and untrue and that he had fully accounted to 'the plaintiff for all moneys he had received from him. Under the circumstances disclosed, we feel that the limited time given the defendant in which to procure the sureties and prepare for trial was unjust. The justice in the court below had determined that the default should be opened; and, having so decided, he ought not to have required the performance of the conditions imposed within so short a time as to practically result in a denial of the motion. That the defendant endeavored to comply with the order does not deprive him of his right to appeal therefrom, but rather shows his faith in the merit of his cause; nor was it necessary that he should particularly specify in his notice of appeal any portion of the order. In the absence of such a specification the whole order may be considered. The defendant also appealed from the judgment entered against him by default. ‘Such an appeal will not lie.

Appeal from judgment dismissed.

'Order reversed, with costs to appellant to abide the event; default opened and new trial ordered.

Delany, J., concurs.

Lehman, J. (dissenting).

I concur in the view that, where the order opening the default contains terms not authorized by the Municipal Court Act or coupled with such requirements as to their compliance as to practically amount to a denial of the motion, we may regard the order as a denial of the motion which may be reversed or modified by this court. In this case, however, I find that the terms are authorized by the Municipal Court Act and the requirements ■as to their compliance within the sound discretion of the court.

¡Section 256 permits the -court to order the defendant to deposit the amount of the judgment or to give an undertaking with sufficient sureties for that amount. As I read the statute, the order need not be in the alternative, but may require the deposit of the amount of the judgment without giving the right to give a bond in its pl-aee. Clement v. White’s Express, 120 N. Y. Supp. 752; Kramer v. Horowitz, 111 id. 697. While it may be that the purpose of the section is to provide for security and that justice is usually best subserved by making the order in the alternative, -there are instances where the permission to give a -bond would, by reason of the necessary -delays or for -other causes, work .a possible injustice to the plaintiff. In my opinion this case presents such an instance.

The -defendant states that he is a young -attorney, accused of a grave dereliction in his professional duties. If he is innocent, he would, it might be supposed, naturally seek to litigate the charge and to clear his name -as soon as possible; yet I find from the -affidavits that, when the case was reached on J une twentieth, -after repeated -adjournments,, he “ was out of town ” without a legal ex-cuse. He urges, it is true, that he left town relying upon his attorney’s statement that the plaintiff’s -attorney had consented to an -adjournment to the twenty-first; but, not only does his attorney not corroborate him directly, but the affidavits of the -attorney are hardly reconcilable with the defendant’s affidavit on this point. On the twenty-second day of June, the defendant obtained a stay of execution in -an order to -show cause returnable on June ■twenty-ninth, seven days thereafter and only one day before .the court’s summer vacation, -although section 1 of the Municipal Oourt Act expressly limits the jurisdiction of the .court to grant stays of five days. The order was subsequently modified, apparently on the plaintiff’s demand, and was made returnable on June twenty-seventh. On that date the -plaintiff presented -affidavits in -opposition to -th-e defendant’s- motion which, if true, answer every point raised in support thereof, -but consenting to open the default upon condition that the -amount of the judgment be paid into court and costs of. this motion be paid on or before the 28-th -day -of June and that the -case be set down f-or trial for the 2'9th day of June so that the -case will be disposed of before the fall.”

Under these circumstances the justice could in his discretion open the default upon the terms suggested by the plaintiff and was not 'bound to grant the defendant’s motion upon less onerous terms which would result in a long delay, especially since there is ample evidence to show that the defendant’s motion was not in good faith but interposed only for delay. The justice, however, apparently sought to make the terms as light as was possible without causing such delay and granted the defendant the alternative of filing a bond within a period shorter, it is true, than would usually be justified, but extending to the last day of the term. This condition was not only, in my opinion, within the sound discretion of the court, but a less onerous condition would have been an abuse of discretion.

The defendant failed to meet these terms by producing sureties who could justify, or by depositing" the money in court, and the judgment rendered upon his default should not be vacated.

Order reversed.  