
    Ignatz M. Rottenberg, Respondent, v. Louis Stajer et al., Appellants. Ignatz M. Rottenberg, Respondent, v. Louis Stajer, Appellant.
    (City Court of New York, General Term,
    July, 1899.)
    Inquest—Vacation discretionary — Affidavit of merits.
    It is discretionary with the Special Term whether it will vacate an inquest, and the General Term will not interfere unless there has been an abuse of discretion.
    Failure to produce an affidavit of merits is a proper ground for a refusal to vacate.
    Appeal from an order denying motion to open default.
    Robert L. Turk, for appellants.
    Edward Mandel (Samuel I. Frankenstein, of counsel), for respondent.
   Hascall, J.

The appellants seek to set aside inquests taken by respondent at the Trial Term, and these appeals come before us, from an order made at the Special Term denying the application for such relief.

We find that no abuse of that discretion, which is lodged in the court at Special Term, was made in this case. The decision to vacate an inquest is entirely a discretionary one, and without a clear abuse, will not be disturbed by the General Term. 2 Rumsey’s Pr. 228; Leighton v. Wood, 17 Abb. Pr. 177. Upon the trial no legal or reasonable excuse for postponement was advanced, and the justice there presiding properly declined to adjourn the trial because of an (expected) agreement, unsupported by affidavit of any kind. We may also allude to the absence of the affidavit of merits required by the rule, as an additional ground for our decision hereon. Johnson v. Lynch, 15 How. Pr. 199.

Order appealed from affirmed, with costs.

Conlan and Sohuohman, JJ., concur.

Order affirmed, with costs.  