Foshay v. Drost
The Superior Court of New York City
This is an action brought to recover money alleged to be due for the employment of the defendant and the charter of his vessel, for a voyage to Virginia for oysters.
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This is an action brought to recover money alleged to be due for the employment of the defendant and the charter of his vessel, for a voyage to Virginia for oysters. The answer avers that the plaintiff did not perform his contract, and has not refunded the money received for the purchase of the oysters, but so negligently performed the service that the defendant lost $200 of the money which he furnished to the plaintiff for the purchase of the oysters, and sustained by such negligence further damage to the amount of $250, and prays judgment against the plaintiff, for the said two sums and…
1Opinion of the Court
By the Court—Woodruff, J.
We regard it as well settled that, where a motion is made to the Court to open a default, as a mere favor to the moving party, the power of the Court being conceded, an order, either granting or denying such motion, will not be reviewed on appeal. In such case, no substantial right is violated; for relief from the default in such case is not a matter of right. The motion does not involve the merits; for the opposing party being in all respects regular, no rule of law or practice has been violated, and the merits of the action are not the questions in any wise -to be…
2Cases cited2 opinions
- Hall v. DwinellNew York Supreme Court · 1834
- Jacobs v. MarshallThe Superior Court of New York City · 1857