It is to be observed in this case that the order appealed from did not vacate the judgment which was granted upon the default. It is therefore not within the exception from appealable orders specified in section 257 of the Municipal Court Act. Dorfman v. Hirschfield, 53 Misc. Rep. 538, 103 N. Y. Supp. 698. Upon the merits, I am of opinion that the default should have been opened on the payment of moderate costs.
The order will be modified by granting the motion to open the default and vacate the judgment upon payment of $5 costs, and, as thus modified, it is hereby affirmed. All concur.