Peck v. Kamsler , 104 N.Y.S. 346 ( 1907 )

SEABURY, J.

This is an appeal from an order opening a default, resulting in the dismissal of the cdmplaint in an action upon the calendar of Trial Term, Part 2, of the City Court. The appellant seeks to have the order modified, by striking out the provision imposing costs, and directing that the action be placed upon the calendar of Trial Term, Part 4.

The opening of the default was discretionary with the court, and as a condition of exercising this discretion in favor of the plaintiff the court imposed costs and required that the action should be placed upon the calendar of Trial Term, Part 4, so that it might be promptly reached for trial. Henry Huber Co. v. Soles, 12 Misc. Rep. 548, 34 N. Y. Supp. 17. There was no abuse of discretion in making the order appealed from. There is nothing in the record before this court to show that the case is not of such a character that it could properly be tried at Part 4, which is the special calendar for the trial of short causes.

The order appealed from is affirmed, with costs and disbursements. All concur.