
    CHARLES H. TRAITTEUR, Respondent v. JAMES LIVINGSTON, Appellant.
    
      Dismissal of complaint at trial term for non-appearance of the plaintiff— Default set aside by court, within judicial discretion, cannot be reviewed.
    
    The action was for damages arising from defendant’s alleged negligence. The answer contained a general denial of the averments of the complaint, and set up as a counter-claim damages for alleged negligence of plaintiff in a transaction which appears by the pleadings to be the same transaction referred to in the complaint. To this counter-claim there was no reply. The position claimed by the defendant is, that the record shows that the plaintiff had no right of recovery; that under section 522 of the Code of Civil Procedure, the allegations of the answer must be taken to be true. Held, that it was within the discretion of the court below to refuse to decide this matter upon motion, and to refer it for determination to the ordinary proceedings in the action, and especially in vievv of the possibility that the plaintiff in those proceedings would procure relief against the consequence of his neglect in not replying to the answer. It appeared by the affidavits that the plaintiff’s attorney, in not appearing, acted upon what he supposed was an agreement or arrangement with defendant’s attorneys, that was denied by the latter, but the preponderance of proof as to the arrangement was in favor of plaintiff. The court had a right to consider this fact in opening the default. The court below exercised a judicial discretion in setting aside the default which cannot be reviewed on appeal.
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided March 2, 1891.
    
      Appeal from an order of the court at special term.
    
      W. Jackson, attorney, and George W. Stephens of counsel, for appellant.
    
      George Finck, attorney and of counsel, for respondent.
   Per Curiam.

The dismissal of the complaint was ordered at trial term, the plaintiff not appearing. The court below used a judicial discretion in setting aside the default which cannot be reviewed.

The learned counsel for appellant argues that the record showed that the plaintiff had no right of recovery.

The action was for damages from defendant’s alleged negligence. The answer contained a general denial of the averments of the complaint. It then made a counter-claim for damages from plaintiff’s alleged negligence in a transaction which it will be assumed appears by the pleadings to be the same transaction that the complaint referred to. The counter-claim averred that the plaintiff was negligent. To this counter-claim there was no reply. And the position for defendant is that, by section 522, Code Civil Procedure, for the purposes of the action, the allegations of the answer must be taken as true.

It was within the discretion of the judge to refuse to decide this matter upon motion and to refer it for determination to the ordinary proceedings in an action, and especially in view of the possibility that the plaintiff would procure, if it were proper, relief against the consequences of a want of a reply.

The terms upon which the default was opened, were complained of. It appears by the affidavits that the plaintiff’s attorney, in not appearing, acted upon what he supposed was an arrangement with the other side. The arrangement was denied, but the plaintiff may have believed it was made. As to its existence the preponderance of proof was with the plaintiff. The court had .a right to consider this in settling terms.

Order affirmed, without costs.  