Cohen, Goldman & Co. v. Ellmann

The court at Special Term disregarded, as it was bound to do, the apphcation so far as it was “ for an order directing the signing of the order heretofore submitted to Mr. Justice Hotchkiss,” and granted the alternative rehef demanded for summary judgment, as upon an original motion therefor. As it appears on the face of the order appealed from, and the fact is admitted, that such motion was not opposed at Special Term, the motion to dismiss the appeal therefrom should be granted, but without costs and without prejudice to a motion by the defendant to open default. Present — Clarke, P. J., Laughlin, Dowhng, Page and Greenbaum, JJ. Motion to dismiss appeal granted, without costs and without prejudice to a motion to open default.