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2 Thomp. & Cook 530

Delany v. Delany

New York Supreme Court

Decided January 15, 1874

New York Supreme Court · decided 1874-01-15

This action was for a limited divorce, and the complaint alleges abandonment and cruel treatment as the grounds for the decree asked for. Judgment was taken against defendant by default, March 30, 1870. On April 6,1870, Judge Beady made an order that the default be opened, the judgment to stand as security, and that the cause be referred.

Decided 1874-01-15

Per Curiam.

¶1For the reasons assigned by the court at special term, we are of opinion that.the order appealed from should be affirmed. The application to open the default was to the favor, and not a matter of strict right. The coqrt had a right to impose the condition of an immediate reference and speedy trial; and the defendant, if he did not choose to take the order with the condition, was *532at liberty to decline its benefits, and allow the judgment on the trial by Judge Cardozo to stand; or, as suggested by the court below, if the condition was improperly imposed, his remedy was by appeal from that part of the order. A reversal of the order of reference in toto would simply leave the former judgment in full force.

¶2Order affirmed.

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