
    Charles H. Traitteur, Resp't, v. James Levingston, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 2, 1891.)
    
    1. Appeal—Opening default.
    An order setting aside a default taken on failure of plaintiff to appear is discretionary and not appealable.
    2. Default—Pleading.
    On motion to open a default it is discretionary with the court to refuse to decide the question as to the effect of a failure to reply to a counterclaim and refer it for determination to the ordinary proceedings in the action.
    3. Same—Teems.
    Where it is claimed that the failure of plaintiff’s attorney was due to an arrangement with the other side, which arrangement was denied, but the preponderance of evidence as to its existence is in favor of plaintiff, the court has a right to consider this in settling terms.
    Appeal by defendant from an order setting aside a dismissal of complaint on payment of the disbursements.
    The action is one brought to recover damages alleged to have resulted from the negligence of the defendant. The defendant, by his answer, denied that there had been any negligence on his part, and, as a counterclaim, set up that the plaintiff himself was the party in fault; that by reason of plaintiff’s negligence defendant had‘been injured, and demanded judgment for his damages. To •this counterclaim the plaintiff failed to reply.
    
      George W. Stephens, for app’lt; George Finch, for resp’t.
   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 averment of the complaint. It then made a counterclaim, 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 counterclaim averred that the plaintiff was negligent. To this counterclaim there was no reply, and the position for defendant is that by § 522, Code Civil Procedure, for the purposes of the action, the allegation 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’s 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.

Sedgwick, Oh. J., and Truax, J., concur.  