
    Henry C. Tucker, App’lt, v. Henry Pfau, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Appeal—Justice’s court—New trial.
    The granting of a new trial by the county court on appeal from a judgment of justice’s court rendered upon default is so much a matter of dis~ cretion as not to be subject to review by another court.
    
      Appeal from order of the Erie county court, granting a new trial to the defendant before the justice of the peace by whom the judgment appealed from was rendered.
    
      Henry G. Adams, for app’lt; John R. Hazel, for resp’t.
   Bradley, J.

It is difficult to see in the affidavits on the part of the defendant any satisfactory excuse for his default in appearing before the justice on the day of the trial. It seems to have been assumed on the part of the defendant, without taking the trouble to obtain information on the subject, that the plaintiff had by his complaint demanded judgment for a sum exceeding fifty dollars and therefore that the defendant could by appeal and demanding it take a new trial in the county court. Code Civil Pro., § 3068. But as by his complaint the plaintiff sought to recover a less sum only, and as the defendant alleged no claim available against that of the plaintiff for a greater amount than fifty dollars, the defendant had no right by appeal to take such new trial, nor did the defendant make it clearly appear that manifest in j ustice was done him by the judgment. But upon appeal taken from a justice’s judgment by a defendant who has failed to appear at the time of the trial, and who “ shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for bis default, the appellate court may in its discretion set aside the judgment,” and direct a new trial before the same or another justice of the county. Code Civil Pro., § 3064. It was by the exercise of the discretion which the county court assumed to have that the new trial was granted before the same j ustice in the present case. And while it may seem that the power of the county court was somewhat arbitrarily exercised in granting the new trial, it was, nevertheless, so much a matter of discretion as not to be the subject of review by another court. Wavel v. Wiles, 24 N. Y., 635; Reilley v. D. & H. C. Co., 102 N. Y., 383, 386; 2 St. Rep., 419; Tanner v. Marsh, 53 Barb., 438; Thomas v. Keeler, 52 Hun, 318; 23 St. Rep., 436.

The cases cited on the part of the plaintiff are mainly those of the county courts on appeals from justice’s judgments and of the court of common pleas of the city of New York on appeals thereto from the district courts of that city, to which appeals the provisions of the statute before mentioned are in like manner applicable. Code Civil Pro., § 3213. And, therefore, those cases do not necessarily furnish authority beyond the court of review in which is vested the discretionary power given to it by the provisions of § 3064 of the Code. It cannot be said that the affidavits on the part of the defendant were utterly barren of any facts for the consideration of the county court upon the questions to which its discretion was applicable.

And, therefore, the order must be affirmed.

Order of the Erie county court appealed from affirmed, with 'ten dollars costs and disbursements.

Dwight, P. J., Lewis and Haight, JJ., concur.  