
    Pauline Edelson, as Administratrix, etc., Respondent, v. Hyman Epstein, Appellant.
    (Supreme Court, Appellate Term,
    May, 1899.)
    Municipal Court of the city of New York — Opening default, taken after motion of interpleader has been denied, with leave to renew.
    On the day when a summons was returnable in the Municipal Court of the city of- New York a motion, coming on upon an order to show cause why' the defendant should not be allowed to pay the demand in suit into court and interplead a third party, was denied with leave to renew it on proper papers within four days. On the same day the plaintiff was - allowed to take an inquest.
    Held, that, if the leave to renew had the effect of postponing the return day of the summons and excusing the default, a motion to open it should have been made before the trial justice, and that an appeal to the Appellate Term should not have been taken in the first instance.
    Appeal by the defendant from a judgment entered upon an inquest taken in the Municipal Court, fifth district, borough of Manhattan-.
    J. Charles Weschler, for appellant.
    Max Brown, for respondent.
   MacLean, J.

Qn the day before the summons was returnable, the defendant obtained, on affidavits, an order to show cause why he should not be permitted to deposit the money in court and inter-plead another person named. The order to show cause and the summons were returnable on the same day. On that day the motion was heard and denied in an order granting “ leave to renew said motion on proper papers within four days.” On the same day, the justice permitted the plaintiff to take an inquest, and from the judgment entered thereon comes the present appeal, which, however, rests neither upon error of law nor upon error of fact. Burkhard v. Smith, 19 Misc. Rep. 31. As the motion to interplead is to be made before answer (§ 820, Code Civ. Pro.) it may be that the leave to renew within four days was practically a deferment of the return day of the summons, and that the taking of the inquest was at least premature, and, therefore, a ground for opening the default, but the application therefor should be made to the justice under section 1367, Cons. Act, which provides'for-.an appeal to this tribunal. The judgment should be • affirmed, with costs. -•' .....

Éreedmaw, P. J., and Lextentritt, J., concur.

Judgment affirmed, with costs to the respondent.  