#### Olga Schwartz, Respondent, *v.*Simon Schendel, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Municipal Court of- Hew York — Terms of opening default — Review by Appellate Term.

The Appellate Term has power to review the terms of an order, made under chapter 748 of the Laws of 1896, opening a default in a Municipal Court of the city of New York, in a case ■ where there has been an abuse of discretion.

The justice may, as a condition of opening a default, impose costs to the extent of $10 and no more, and may also, in a proper case, require the defendant to give an undertaking conditioned that he will not sell, assign or transfer his property to delay or defraud the plaintiff, but the justice cannot compel a defendant to pay the costs embraced in the judgment by default, nor order him to make a cash deposit as security.

Appeal from an order of the Municipal Court of the city of Hew York, borough of Manhattan, second district, opening the default of the -defendant.

Benno Loewy, for appellant.

Abraham B. Schleimer, for respondent.

Beekman, P. J.

In opening defendant’s default, the court below imposed the following conditions:

1. The payment of $10 costs.

2. The payment of the costs embraced in the judgment by default, amounting to $17.50.

3. The payment of $16.50 for witnesses’ fees.

4. The deposit with the clerk of $200, the amount of the plaintiff’s claim.

The defendant appeals from only so much of the order as imposes the conditions above mentioned.

The objection is made that this court has no power to review the terms upon which such an order is made, on the ground that, under chapter 748 of the Laws of 1896, which confers authority upon the court below to open such defaults, the conditions which may *702be imposed rest solely in the discretion of the justice. Such, however, is not the law. The same statute which confers jurisdiction upon the lower court declares broadly and without limitation, .'that an appeal from the order may be taken to this court; and while we will not Ordinarily undertake to review a discretion which has been exercised below within reasonable limits, we consider this court free to correct any abuse of such discretion, and certainly any excess of authority which the order may disclose.

The action of the justice in opening the default in this case was undoubtedly right, and was called for by the facts presented on the motion, but in view "of the stipulation of counsel and the direction of the court for a peremptory trial on the adjourned day, we are not disposed to hold with the counsel for the defendant that "the justice should not have imposed any conditions whatever in so doing. ■ We-are of the opinion, however, that the justice had no power to require the payment of the costs awarded in the judgment entered upon the default, or to exact the deposit of the sum of $200 as security for the payment of the plaintiff’s claim if a recovery should be had by him in this action.

While it is true that chapter 748- of the Laws of 1896 authorizes . the court or justice to open defaults and to set aside judgments entered thereon “upon such terms and conditions as the court or justice may deem proper,” it also provides that the justice “ may award such costs, not exceeding $10, as a condition for opening any such default.” A special provision such as this must be regarded as qualifying and limiting the general power expressed in the broad terms first above quoted, and as expressing the only authority which is conferred to impose the payment -of costs as a condition of granting the relief asked for. When, therefore, the trial justice required the defendant in'this case, as he did, to pay $10 costs, he exhausted his .authority in that regard, and the exaction of the payment of further costs was without warrant of law. . '.

The counsel for .the plaintiff cites the case of Szerlip v. Baier, 22 Misc. Rep. 351, as an authority opposed to this position. We cannot agree, with this view. In that case, the justice required as one of the conditions of opening the default the payment óf a judgment recovered against the defendant for $73. It is true that the recovery was for costs incurred in the action, but they were costs awarded by'this court upon the reversal of an order which had been previously made and from which an appeal had been taken: The court, in making it a condition of opening the default that this *703judgment should be paid, was not directing the payment oí costs as such within the meaning of chapter 748 of the Laws of 1896. The judgment was absolute, and the defendant was bound in any ■event to pay it, and in requiring it to be paid the court did not in anyway augment his liabilities or subject him to the payment of •costs which he was not then absolutely bound to pay.

The construction which we have given to the statute also requires us to disapprove of the condition directing the deposit by the defendant of $200, above mentioned: The act in question also contains a special provision to the effect that the justice may, “ as a condition for opening any default or vacating, modifying or setting aside any judgment, order any defendant in default to give an undertaking with sufficient sureties to the effect that such defendant will not sell, assign or transfer any of his property with intent to hinder, .delay or defraud the plaintiff in the collection of his claim or demand, if the plaintiff shall prevail on the trial of such action, and that such defendant or his sureties mil pay the amount of any judgment recovered against such defendant in such action.”

The record shows that the provision for the deposit of money contained in the order was based upon some proof tending to show that the defendant contemplated transferring his property so as .to place it beyond the reach of an execution. It was, therefore, competent for the court to secure the plaintiff against any such action, but it could only be done in conformity with the special provision in that behalf which wre have quoted, and which must be construed as. excluding the adoption of any other method for that purpose than that which the statute thus specifically sanctions. It must be remembered that the jurisdiction of the Mrmicipal Court of the city of Rew York and its justices is purely statutory, and does not extend beyond that which is clearly conferred by legislative act.

We are, therefore, of the opinion that the order in question should be modified by striking out the second and fourth provisions as above numbered, and by substituting for the fourth provision a requirement that the defendant give an undertaking in the sum of $200, conditioned as the statute prescribes, and that as so modified it be affirmed, without costs. The order should be presented for settlement, and should contain a provision setting the cause down for trial on a day to be designated therein. In order to avoid further complications and appeals, we desire to say that the effect of the order on this appeal will be to supersede the subsequent order made by the justice vacating the order appealed from on the *704ground of noncompliance with the conditions which it exacted:.;.' and as we-have-also vacated the judgment recovered on the default ■' upon the appeal taken therefrom, the defendant, on the day to> be fixed hy ns for the trial, is-entitled to appear and defend the action without further- question. Order modified accordinglyj.and as- so-modified affirmed, without costs.

Gildersleeve. and Giegerich,. JJ., concur.

Order modified, and as modified affirmed, without costs.