
    Adolph Goldstein, Respondent, v. Louis Frumkes, Appellant.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Municipal Courts: Procedure — Relief from default — Sufficiency of excuse: Review — Judgments and orders reviewable — Order
    opening default on terms.
    In the Municipal Court of the city of New York, where a motion by a defendant to open his default is granted only upon certain terms, with which he fails to comply, he may appeal therefrom.
    In such a case, where, when the case was called, the defendant’s counsel was actually engaged in the trial óf an action in the. Supreme Court and his representative handed the trial justice an affidavit to that effect, the justice, in the exercise of' a sound discretion, was bound to grant an adjournment; and upon his refusal so to do an order relieving the defendant from default only upon the imposition of ten dollars costs cannot be considered just and proper but will be reversed.
    Appeal by the defendant from a judgment of the Muncipal Court of the city of Eew York, borough of Manhattan, eighth district, rendered in favor of the plaintiff and from an order granting his motion to open his default, on condition that he pay $10 to plaintiff, and, if these terms are not complied with, denying the motion.
    Frank M. Franklin, for appellant.
    Abraham Greenberg,- for respondent.
   Lehman, J.

The defendant appeals from a default judgment, entered on the 21st day of April, 1911, and from, an order denying his motion to open the default herein unless he pays ten dollars costs. The appeal from the judgment must be dismissed, because no appeal lies from a default judgment. The respondent also claims that the appeal from the order must be dismissed because, under section 25'7 of the Municipal Court Act, “ no appeal shall lie in the first instance from an order opening a default and vacating a judgment entered thereon.” In this contention I do not agree. The defendant never complied with the order. This order in the ease at bar was a self-operative order and needed no further action of the court in case the defendant failed to comply with the condition. Sutton v. Bayles, 70 Misc. Rep. 522.

“ The defendant appeals from the order after failure by him to comply with its terms, the order then becoming one denying his motion to open his default and, therefore, appeal-able.” Thompson v. Hudson Building, 59 Misc. Rep. 510; affd., 126 App. Div. 912. Bor do I think that an appeal lies only, where the conditions imposed for opening such default are not only such as the Municipal 'Court has no power to grant but are in the nature of things so harsh and unjust as to be a virtual denial of the motion.” Lee v. Revolving Airship Tower Co., 127 App. Div. 36, 38. Such considerations apply to the question whether the order should be affirmed or reversed, but do not apply to the question whether or not the order is appealable. As soon as the defendant failed to comply with the order, it became inoperative as an order opening the default (Koransky v. Greenberg, 136 App. Div. 644; Henschel v. Everett, 67 Misc. Rep. 138) and must thereafter be regarded as an order denying his motion to open the default and as such appealable.

The excuse which the defendant gave for his default was that, when the case was called, his counsel was actually engaged in the trial of an action in the Supreme Court and that his representative handed the trial justice an affidavit to this effect. Under the rules of the Supreme Court and the City Court, the defendant was entitled, as a matter of right, upon the submission of such an affidavit, to an adjournment. Even if the Municipal Court has no such rule, it would appear that the trial justice, in the exercise of a sound discretion, was bound to grant such an adjournment. Mann v. Hefter, 128 N. Y. Supp. 663. When he failed to grant the adjournment, the defendant had no recourse except to move to open the default. Ordinarily, where there has been a real default due to any voluntary act of the attorney or the litigant, no order imposing terms within the provisions of the statute (Mun. Ct. Act, § 256), or not so onerous as to amount to a denial of the motion, should be reversed by this court; but, where the “ default ” arises from a ruling of the trial justice entirely at variance with the practice of all civil courts in this judicial department, it seems to me that we should reverse an order imposing even ten dollars for these costs. Such an order cannot be considered “ just and proper ” within any sound discretion.

The order should be reversed and the motion to open the default granted, with costs in this court to appellant to abide the event.

Giegerich" and Pendleton, JJ., concur.

•Order reversed and motion granted, with costs to appellant to abide event.  