I concur with Judge Ingraham, that the pro ceeding before Judge Barnard was only a default; and, with some hesitation, I acquiesce in the conclusion to declare the order made by Judge Brady not to be appealable. While I do not differ from the opinion that the action of the Special Term, in opening a default, is generally not appealable, I am not willing, by my silence, to seem to assent or agree to the proposition that it is never so. If there is a palpable abuse of discretion, the order made may be reviewable. This has been frequently held, even when the question arose in respect to the exercise of discretion as to the extent of a cross-examination of a witness.
Without elaborating this opinion with citations of authorities, or illustrations of the application of this rule, I quote only from the remarks of Judge Brady in Plato v. Kelly (16 Abb. Pr., 188): “ The limit of a cross-examination is entirely in the discretion of the judge conducting it. This is an elementary rule, and one founded in good sense and justice. It is true that the exercise of discretion is not abso*481lute in its effect. If it be abused, the party injured has his remedy by appeal. The defendants have not shown that the discretion exercised by Judge Hilton was an abuse of power, and the appeal must therefore fail.”
I do not feel by any means certain that, tested by that standard, the order below should not only be reviewed, but, if reviewable, reversed.
The default suffered by the plaintiff was plainly not only willful, in the bad sense of that term, but was the result of consultation among his counsel, not because they were really in good faith unprepared, but because they chose to assume that the judge then presiding was prejudiced, and, so assuming, took the responsibility of “objecting,” and “declining” to go to trial before him. Whether, under such circumstances, an order relieving them from the default is not an abuse of discretion, I do not mean to say; but this I do say, that it was a most unwise exercise of discretion, lacking, if at all, but very little, to bring it up to the point of abuse. I say it was unwise, because it is greatly calculated to impair the dignity of a judicial tribunal, when one judge affords relief to a suitor who has dared to impugn another judge of the same court. The dignified, the right course, would be to refer such an application to the judge whose authority ivas thus contemned, and not, by entertaining a motion for relief, seem to give countenance to such practice to avoid trying a cause before a particular judge, as ivas resorted to here. To entertain such motions is to sit in judgment over the rectitude of an associate), and to establish a practice which may some day be used against those who assert or approve such a rule. Prejudiced and bitter partisans, or disappointed or defeated litigants, or practitioners Avliose small minds are incapable of a noble sentiment, or of any higher feeling than that of envy at the success of those Avhose positions they covet, but have not intellect to attain or fill, may be alloived to indulge in vituperation of the motives and conduct of their superiors. Proceeding from such sources, attack and abuse are impotent, and only reveal the assailants, however they may attempt to mask and conceal *482themselves, in them true light, making the assailed brighter by. contrast. But it will be sad indeed for the honor, dignity and usefulness of courts, when judges shall give color to baseless assaults upon each other by granting favors to those who make them, instead of promptly and effectually rebuking them. With this protest, so that I may not be misunderstood, I am willing, giving to the respondent the benefit of the doubt whether this case should or not be considered within the principle I have mentioned, to concur with Judge Ingraham in dismissing the appeal, but without costs.
Appeal dismissed.