
    Emma Keller, Resp’t, v. Henry Feldmann, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 16, 1893.)
    
    1. Appeal—Common pleas.
    A judgment of the general term of the city court affirming a judgment by default, is not reviewable by the court of common pleas.
    2. Same.—Deeault.
    An order of the general term of the city court, which affirms an order-refusing to open a default is not an order affecting a substantial right so as to be appealable to the court of common pleas.
    3. Same—Discretionary orders.
    Discretionary orders of the city court are not reviewable by the court of common pleas, except, perhaps, when they exhibit an abuse of discretion.
    Appeals from judgment of the general term of the city court affirming a judgment by default, and from order of the said general term affirming an order denying a motion to open the default.
    
      Langbein Bros. & Langbein, for resp’t; John Henry Hull, for app’lt.
   Pryor, J.

The record shows that when the action was called for trial the defendant failed to appear, and that thereupon his default was entered, and judgment rendered against him upon an assessment of damages.

Ho appeal lies from a judgment by default. The only office of an appellate tribunal is to review the determinations of the primary jurisdiction; and since a judgment by default involves no adjudication upon the issues in controversy, it follows that nothing is presented for revision by the court above. Flake v. Van Wagenen, 54 N. Y., 25, 28 ; Innes v. Purcell, 58 id., 388; Mallby v. Greene, 1 Keyes, 548. A judgment of affirmance by default is not an actual determination. Stevens v. Glover, 83 N. Y., 611; McMahon v. Rauhr, 47 id., 67. By express provision of the Code (§ 1294), a judgment by default is excepted from the privilege of appeal. Thus, reason, authority and statutory enactment concur to the point that the appeal from the judgment must be dismissed for lack of jurisdiction to entertain it.

As to the order upon appeal:

It appears that when the plaintiff moved the cause for trial, the defendant asked an adjournment because of the absence of an alleged material witness. The request for the adjournment being opposed, was denied by the trial judge; thereupon defendant’s counsel withdrew from the litigation; and an inquest of damages was taken by the jury. Afterward the defendant moved at special term of the court below to open the default and vacate the judgment; upon opposing affidavits the application was denied; on appeal from the order of denial it was affirmed by the general term; and from that order of affirmance an appeal is prosecuted to this court. The question is: Have we jurisdiction to , entertain the appeal ?

The argument of appellant imports that an order refusing to open a default affects a substantial right, and so is within the terms of the statute defining the appellate jurisdiction of the common pleas over the orders of the city court. Code of Civ. Pro., § 3191, subd. 3. But, the reasoning is vitiated by a fatal fallacy; namely, in assuming that an order denying a motion to open a default affects a “ substantial right.” In the sense of this provision of the Code, a substantial right is a strict legal right, enforceable as such, and not resting at all in the discretion of the court De Barante v. Deyermand, 41 N. Y., 355; Foote v. Lathrop, id., 358, 361; Martin v. Windsor, 70 id., 101, 103.

Hence the “ universal rule 'that an order embodying a determination of the court below which is the result of the exercise of a discretion vested in that court, will not be reviewed in the court of appeals although it affects a substantial right.” Baylies on New Trials and Appeals, 217-218 ; Anonymous, 59 N. Y., 313, 315; Smith v. Platt, 96 id, 635-6; Witkowski v. Paramore, 93 id., 467; Clyde v. Rogers, 87 id., 625 ; Lawrence v. Farley, 73 id, 187; Jenkins v. Putnam, 106 id., 276 ; 8 St. Rep., 710. The appellate jurisdiction of this court over the determinations of the city court being exactly commensurate with the jurisdiction of the court of appeals over its subordinate tribunals, it results that we have no authority to review a discretionary order of the city court. Robinson v. Cornish, 36 St. Rep., 39 (G. T. Com. Pleas); McEteere v. Little, 8 Daly, 167 ; Walsh v. Schulz, 12 id., 103 ; Matter of Adler, 60 Hun, 481, 483 ; 39 St. Rep., 462. But whether a default should be opened is a question of judicial discretion ; and an exercise of that discretion by the city court is not reviewable by us. Traitteur v. Levingston 13 N. Y. Supp., 603 ; 37 St. Rep., 368; Miller v. Tyler,. 58 N. Y., 477, 480 f Walsh v. Schulz, 12 Daly, 103 ; Wakefield v. The Am., etc., Co., 13 id., 349 ; Robinson v. Cornish, supra; Judson v. O'Connell, 14 N. Y. Supp., 92; 37 St. Rep., 581; Clute v. Mahon, 9 N. Y. Supp., 713 ; 31 St. Rep., 405 ; Depew v. Dewey, 56 N. Y., 657 ; Ferris v. Ferris, id., 614; Smith v. Belden, 60 id., 642; Davis v. Borst, 58 id., 669; Wade v. De Leyer, 63 id., 318; Matter of Loew, 90 id., 666; Stevens v. Glover, 83 id., 611.

The defendant suffered default because of the refusal of the trial court to allow an adjournment; but orders of adjournment are discretionary, Borley v. Wilson, 34 St. Rep., 987, and hence are not appealable to us from the city court.. Cases supra-. Nevertheless, we have examined the papers on the motion for adjournment sufficiently to enable us to say, without hesitation, that in denying the motion the court committed no abuse of discretion. The application for postponement went upon the ground of the absence of an alleged material witness. But the witness had not been subpoenaed; nor had any effort been made to subpoena him or otherwise to procure his attendance. Eor this defect alone the application was properly denied, Brooklyn, Oil Works v. Brown, 7 Abb., N. S., 382, but on reading the record we perceive that the adjournment might well have been refused also on the more sub- . tantial ground of justice.

The appeal from the order must be dismissed.

Appeals dismissed, with costs.

Bookstaver and Bischoff, JJ., concur.  