
    Max Wadler, Respondent, v. David Karpel, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1912.)
    Appeal—order opening default — dismissal of.
    No appeal lies in the first instance from an order opening a default.
    Where defendant was not in court on the day to which the case had been peremptorily adjourned, and presented no legal excuse for having the case held, an appeal from an order opening his default on conditions which he considers too pnerous will be dismissed, and a day set for the trial of the case, provided he previously complies with the conditions of said order.
    Appeal by the defendant from an order of the Municipal Court of the city of Hew York, borough of Manhattan, second district, granting a motion to vacate and set aside a judgment taken by default in favor of the plaintiff upon certain terms.
    Hathan D. Shapiro, for appellant.
    Joseph Cans, for respondent.
   Lehman, J.

The plaintiff has recovered a judgment against the defendant by default. The defendant then moved to vacate the judgment, and for leave to open his default. The trial judge granted the motion to open his default-upon conditions which the defendant considers too onerous. These conditions were entirely within the discretion of the court. The defendant was not in court when the case was called, although it had been adjourned “ peremptorily ” for trial on that day; nor did he present any legal excuse, either under the rules prevailing in courts of record or in the Municipal Court, entitling him to have the case held to await his engagements. In such a case, we have no right to interfere with the terms imposed by the court below. However, in any case, the defendant has no right to appeal from these terms, for no appeal lies in the first instance from an order opening a default. Benvenuta, v. Candeloro, 43 Misc. Rep. 684.

It is true that we have held that, where an order opens a default upon conditions with which the defendant fails to comply after the time has expired in which these conditions may be complied with, it becomes self-operative as an order denying the motion to open the default, and an appeal lies from the order. Goldstein v. Frumkes, 74 Misc. Rep. 450.

In this case, however, the defendant still regards the order as one opening his default upon conditions, for he urges that we should not consider the merits of the defense, for this has already been passed upon in his favor when his default was opened, and he further alleges that, if we feel that the order should be affirmed, we should set a day for trial and preserve his.rights to comply with the conditions of the order.

The appeal should, therefore, be dismissed, with ten dollars costs, and a day set for trial, provided the defendant previously complies with the conditions of the order.

Page and Hotchkiss, JJ., concur.

Appeal dismissed, with ten dollars costs.  