Kinsey, Ranier & Thompson, Inc. v. Berriman

Per Curiam.

Plaintiff took judgment by default. Defendants made a motion to open default, which was denied. Execution was issued and the amount was paid under protest by defendants. The latter appeal from the order denying the motion to open default. Such an order is not appealable. Jacobs v. Zeltzer, 9 Misc. Rep. 455. Defendants should have proceeded according to section 3064 of the Code, and appealed from the judgment taken by default; in which case, if they had shown by affidavit or otherwise that manifest injustice had been done, and also had given a satisfactory excuse for their default, this court might, in its discretion, have set aside the judgment and directed a new trial. Code, § 3064; 24 Misc. Rep. 196; 5 App. Div. 515. The fact that defendants, under protest, paid the judgment, would not bar their right to try the error in fact by an appeal. Empire Hardware Co. v. Young, 27 Misc. Rep. 226.

The appeal must be dismissed, with ten dollars costs and disbursements.

Present; Freedman, P. J., Truax and Gildeesleeve, JJ.

Appeal dismissed, with ten dollars costs and disbursements.