
    William J. Kilts, Respondent, v. Mulford Neahr, Appellant.
    
      fPower of. the Appellate Division to entertain an appeal from a County Court’s affirmance of a judgment by default—proof required that the defendant in default has a meritorious defense — interference with the discretion of the County Court where a substantial right is involved — rule applied the same as on appeals from the Special Term,.
    
    "Where, upcm an appeal to the County Court from a judgment rendered against the appellant upon his default by a justice of the peace, the County Court refuses to exercise the discretionary power vested in it by section 3064 of the Code of Civil Procedure to open the default and grant a new trial of the action, the Appellate Division has jurisdiction, under sections 1340 and 1342 of the Code of Civil Procedure, to review the exercise of such discretionary power, whether the determination of the County Court be considered as a judgment or as an order.
    The fact that the appellant’s affidavit as to the existence of a meritorious defense " to the action was denied by the respondent, and was not corroborated by other witnesses, does not require the County Court to exercise its discretion unfavorably to the appellant.
    
      •Qucere, whether the Appellate. Division will interfere with the action of the County Court if the discretionary power to grant a new trial has been exercised favorably to the appellant.
    
      Semble, that the Appellate Division has jurisdiction to review an order" of a County Court, in an action brought in it or taken to it by appeal, where such order affects a substantial right, even though it was made in the exercise of discretion.
    
      Semble, that upon an appeal to the Appellate Division, from discretionary orders made by a County Court, the rule governing discretionary orders made at a Special Term of the Supreme Court will be "applied, viz,, that the discretion will not be interfered with unless it was arbitrarily or improperly exercised.
    Appeal by the defendant, Mulford Reahr, from a judgment of the County Court of Schoharie county, entered in the office of the clerk of the county of Schoharie on the 22d day of January, 1904, affirming a judgment in favor of the plaintiff rendered by a justice ■of the pe,ace of the town of Cobleskill on the 31st day of March, 1903.
    
      Clark L. Jordan, for the appellant.
    
      G. M. Palmer and John S. Pindar, for the respondent.
   Houghton, J. :

While temporarily in Schoharie county the defendant was sued in Justice’s Court. Upon returning to his home he gave the summons tp liis lawyer with directions to defend. Instead of attending on the return day in person^ his attorney forwarded the summons, by mail to an attorney living in the locality, with ipstructions to-appear and interpose an answer and 'fix'some day for trial. By reason.'of this attorney’s absence from home, he.did not receive the ' papers until judgment had been taken against the defendant by-default. . '

The defendant pursued the'only remedy given to- him -by law for-the opening of the default and the granting of a trial upon the merits by appealing to the County Court seeking the relief' authorized by'the provisions of section 3064 of the Code of Civil Procedure. The County Court refused to open the default and rendered .a judgment of affirmance, with costs.'

The first proposition with which we are confronted is that the judgment having been rendered in a Justice’s Court and the opening of the default and the granting.of a new trial being in the discretion of the County Court, this court has no jurisdiction to-review its. action. The question is in some ■ confusion and authorities can be found both upholding and denying such right.

The jurisdiction of this court must be found, if it exists, in sections 1340 and 1342 of the Code of Civil Procedure. Thé original provisions of these sections have been greatly enlarged by amendments from time to time. The holding of Andrews v. long (79 N. Y. 573), to the effect, that appeals to the Supreme Court from orders of the County Court were confined to actions originating in the County Court, was made nugatory by the amendment of.'section 1342 in 1881 (Laws of 1881, chap. 135), which extended the jurisdiction of the General Term of the Supreme Court to cases which were taken by appeal to the County Court. And the decision in Hand v. Dorchester (43 Hun, 33), to the effect that . the' Supreme Court could not review an order of the County Court granting or refusing a new trial because the verdict was against the weight of evidence; and that of Reiley v. President, etc., of D. & H. C. Co. (102 N. Y. 383), denying a review because of excessive or insufficient damages, were both overthrown by the amendment of section 1340 of the Code of Civil Procedure in 1888-(Laws of 1888, chap." 507), giving to the General Term ' of the Supreme Court power to review a final judgment, of an inferior court, or an order granting or refusing a new trial for any of the causes stated in section 999 of the Code of Civil Procedure. ' By chapter 946 of the Laws of 1895 both of said sections 1340 and 1342 were amended so-as to confer such jurisdiction Upon this court.

The more recent cases in which, in one form or another, it has-been said that the discretion exercised by the County Court would not or could not be interfered with by this ■ court on appeal, areTucker v. Pfau (70 Hun, 59); Wright v. Chase (77 id. 90); Bantleon v. Meier (81 id. 162); National Wall Paper Co. v. Szerlip (9 App. Div. 206), and Goss v. Hays (40 id. 557).

In Tucker v. Pfau and in Goss v. Hays the County Court had. excused the defaults and granted new trials on appeals under section: 3064. In the’ one case the order was affirmed, and in the other,, which was decided by this court, the appeal was dismissed. It-might well be that an appellate court should not interfere with the-discretion thus exercised in granting a new trial, and it would seem that these cases should be confined to the situation involved in their decision.

A motion had been made in Wright v. Chase (supra) to substitute an administratrix in place of the defendant and it had been, denied by the County Court for loches and because the defendant: had lost material evidence by the delay, and the order was affirmed.

In Bantleon v. Meier (supra) the County Court had granted anew trial on the ground of newly-discovered evidence. The appeal was entertained and the order reversed upon a question of practice..

The County Court had permitted the plaintiff in National WallPaper Co. v. Szerlip (supra) to discontinue his action upon payment of nominal costs, and the court on appeal affirmed the order,, remarking that it did not appear that the discretion resting in the-court below had been arbitrarily, exercised and, therefore, would not be disturbed.

Notwithstanding certain expressions in the opinions in these cases-that the appellate court could not review the.discretion of the County Court, the result of the decisions seems to be that the appellate-court would not interfere with such discretion, confining- it to the-same rule which applies to discretionary orders made at Special Term of the Supreme Court where the discretion, is" not interfered, with unless it be arbitrarily or improperly exercised. That this; :is the true rule is illustrated by the cases of Cramer v. Lovejoy (41 Hun, 581) where the terms of allowing an amendment by a •County Court in an action begun injustice’s Court were held to be -unjust and were modified; and of Clark v. Eldred (54 Hun, 5) where the same course was pursued because of terms imposed in setting aside the report, of a referee and granting a new trial; and of New v. Aland (62 How. Pr. 1.85) where the order permitting an amendment was too broad and was modified. In each of these cases it was distinctly held that the, orders, were appealable.

In King v. Sullivan (31 App. Div. 549) it was held that an .order of a County Court denying a motion to open, a default and :for leave to interpose an answer, even though involving the exercise ■ of discretion, was appealable under, section. ■ 1342 of. the Code of -Civil Procedure to the Appellate Division because it affected a ¡substantial right. "

To the. same effect-was the decision.in Kubie v. Miller Brothers & Co. (31 Misc. Rep. 460).

In Carpenter v. Miles (92 Hun, 51) it was said that such an -order would not be reversed by the Supreme Court unless there had .been an abuse of discretion.

We have reviewed the authorities to. this extent in an endeavor to ■ extract from them and from the sections of the Code the true rule in appeals of this character. Our conclusion is that this court has jurisdiction to review an order of a. County Court, in an action brought in it or taken to it by appeal, where it affects a substantial zright, even though made in the exercise, of discretion.

We have treated the decision of the. County Court upon appeal for the'purpose of opening a .default and the. obtaining of a new trial, as an order although in form it is a judgment. The Code •does not permit a. party against whom a judgment has been taken 'by default in Justice’s Court to make a strict motion in the County •Court for the opening, of the default and the granting of a new trial, nor can lie obtain any such relief in Justice’s Court. His only :remedy is in the form of an appeal which results either in the granting of a new trial or in a judgment of affirmance upon its refusal. ■Such an affirmance of the judgment taken, against him by default, with costs of the appeal added, is. what, was entered- against appelJatit-Slid from which he appeals. If such determination be treated as a judgment, as it in form is, then the appellant’s right to appeal under section 1340 of the Code of Civil Procedure is unquestioned.

Having thus come tó the conclusion "that this court has the right to pass upon the merits of the . appeal, we think the County Court ■erred in refusing to grant a new trial. The defendant’s excuse for not appearing was perfect. His answer if true was complete. The learned county judge seems to have denied the new trial ¡because the defendant’s affidavit as to a meritorious defense being denied by the plaintiff was not corroborated by other witnesses. A rule to this effect seems to have grown up in the old Court of Common Pleas of the city of New York, and is illustrated by the case of Gardner v. Wight (3 E. D. Smith, 334). However efficient this rule may have been in a court constantly importuned to open ■defaults, it is manifest that it ought not to be applied to every case. A person may bring action against another upon a transaction cdn-cerning which there are no witnesses except the parties themselves. If no circumstances appear upon the trial and each be equally reputable and tell a reasonable story, the plaintiff must fail because he has not met the burden of proof which the law requires. It is, therefore, manifestly unjust to compel a defendant' to produce a preponderance of proof under such circumstances. So far as appears this may have been the situation with respect to the parties hereto. The County Court should have granted a new trial.

The judgment must be reversed, with costs, and a new trial .granted, and the case remitted to the County Court of Schoharie county for the purpose of designating a justice and fixing a time for the new trial.

All concurred.

Judgment reversed, with costs, and new trial granted in Justice’s Court, and case remitted to the County Court of Schoharie county for the purpose of designating a justice and fixing the time for a new trial, *  