HARDIN, P.J.:

Manifestly a mistake was made in delivering to the defendant a copy of the summons, which copy was filled out as though the summons was returnable on the first of August. The original summons was returnable on the first of September. The affidavits presented to the County Court established that there was an error in fact in respect to the copy of the summons that was served upon the defendant. The return made by the constable upon the summons was presumptive evidence of the service of it in the manner stated, but it was competent to rebut such presumption by the affidavits which were used before the County Court. ( Waring v. McKinley, 62 Barb. 612.)

In Harvey v. Rickett (15 Johns. 87) it was held that the "plaintiff in error may assign, as error in fact, such matters as could not come under the observation of the justice, and, therefore, could not be returned by him, as the misconduct of the jury after they had retired to make up their verdict." Near the close of the opinion delivered in that case it was said: "Whenever any irregularity or misconduct in the jury has taken place which does not appear, and could not be made to appear on the return, some mode ought to be adopted to reach the evil, and none more fit and appropriate occurs to the court than to allow it to be assigned as error in fact."

In Fitch v. Devlin (15 Barb. 49) it was said: "The right to reverse a justice's judgment for an error of fact, not appearing on the record, has always been secured to the party in some form." In the case last cited the service of the summons was imperfect, and a judgment had been rendered against the defendant upon a return of a constable of personal service, and it was held that the judgment might be reversed on appeal, the error of fact appearing by affidavit; and, further, "This remedy by appeal is applicable as well to cases of jurisdictional defects as to those of mere irregularity." That case was referred to with approval in the opinion delivered in Wavel v. Wiles ( 24 N.Y. 637). In the course of the opinion delivered in that case it was said: "It is a fundamental rule governing the review by one tribunal of the proceedings of another, that orders or decisions resting in discretion are not reviewable." In that case it appeared that the defendant had appealed to the County Court and there presented affidavits denying the service of the summons, upon which the County Court ordered a new trial on payment of ten dollars costs. The County Court had acted under section 366 of the Code of Procedure as it then stood, authorizing a County Court, in case the defendant failed to appear before the justice, and it was then shown, by affidavits or otherwise, "that manifest injustice has been done," and the default was satisfactorily excused, to, "in its discretion, set aside or suspend judgment, and order a new trial before the same or any other justice." It was further said in the course of the opinion in Wavel v. Wiles: "An application for a new trial under this section of the Code is addressed purely to the favor and discretion of the court. * * * The Supreme Court erred in reversing the judgment of the County Court. It was not entitled to review its decision on the questions presented in the affidavits, and they could not properly be used or considered on the merits of the case."

The doctrine enunciated in Wavel v. Wiles ( supra) was referred to with approval in Tanner v. Marsh (53 Barb. 438). Wavel v. Wiles ( supra) was decided in 1862.

Section 366 of the Code of Procedure then also contained a provision as follows: "If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact, on affidavits, and may, in its discretion, inquire into and determine the same upon examination of the witnesses." Following section 366 was section 368 of the Code, which provided that if the judgment was affirmed, costs should be awarded to the respondent, and that, if it be reversed, costs should be awarded to the appellant. Also the following provision: "If it be affirmed in part the costs, or such part as to the court shall seem just, may be awarded to either party." In section 371 it was provided what the costs were which should be allowed on appeals.

The rules thus prescribed as to costs on appeals in the County Court remained as stated until the writer of this opinion introduced into the Legislature a bill containing a clause which was adopted in chapter 460 of the Laws of 1862, in the following language: "If the judgment be reversed for an error of fact in the proceedings not affecting the merits, costs shall be in the discretion of the court." (See § 30, Laws of 1862, chap. 460.) That provision is found, substantially the same, incorporated in section 3066 of the Code of Civil Procedure. The 2d subdivision of that section is as follows: "If the judgment is reversed for an error in fact, not affecting the merits, or if a new trial is directed, before the same or another justice, as prescribed in this article, the costs of the appeal are in the discretion of the appellate court."

In the case in hand, therefore, the County Court had a discretion in respect to the costs after it reached the conclusion to reverse the judgment for the error in fact presented by the affidavits. It exercised its discretion by awarding costs to the defendant. We are not at liberty to review that discretion, as nothing appears in the record to show that it was abused or exercised contrary to law. While we might have been better satisfied had the reversal taken place without costs to the defendant, inasmuch as there are many facts and features of the case indicating that the defendant was unwilling to accept a proper offer made to him to waive the judgment or to join issue and to have the action tried on the merits, yet we are not at liberty to interfere with the discretion as exercised by the County Court.

In Wright v. Chase (77 Hun, 90) it was held, viz.: "Decisions of one court resting in discretion are not reviewable in another, unless such review is specially authorized by law."

DWIGHT, P.J., in stating the rule just quoted, quotes numerous authorities in support thereof, and he quotes from Reilley v. D. H. Canal Co. ( 102 N.Y. 382) the following language of RAPALLO, J.: "The general rule is well settled that the decisions of one court, resting in discretion, are not reviewable in another unless such review is specially authorized by law."

We find no statute authorizing this court to review the discretion of the County Court given to it by section 3066 of the Code of Civil Procedure.

Section 3057 of the Code of Civil Procedure provides, viz.: "Where the appeal is founded upon an error in fact in the proceedings, not affecting the merits of the action and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses, or in both methods."

It was, therefore, competent for the County Court to determine as to the error in fact upon the affidavits presented to it. ( Vallen v. McGuire, 49 Hun, 594.)

In section 3064 of the Code of Civil Procedure provision is made that in case the defendant fails to appear before the justice, "and he shows, by affidavit or otherwise, that manifest injustice has been done and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from or stay proceedings thereunder, and by order direct a new trial."

It will be observed that that section confers a discretion upon the County Court.

In the affidavits presented in this case there are no statements tending to show "that manifest injustice has been done."

It was held in Armstrong v. Craig (18 Barb. 387), under the like provision found in section 366 of the Code of 1852, that it was incumbent upon a party seeking a new trial, not only to excuse his default, but "he must show that manifest injustice has been done. A bare affidavit of merits is not sufficient. Facts must be stated, and not conclusions, to enable the court to see that such injustice exists."

It is quite apparent that the affidavits produced by the defendant in the case in hand were not prepared with a view of bringing his case within the requirements of section 3064 of the Code of Civil Procedure.

In Larocque v. Harvey (32 N.Y. St. Repr. 415; S.C., 57 Hun, 366) section 3064 was referred to in the opinion of LANDON, J., who said: "That section is applicable to a defendant in default who seeks to open it. In such case he appeals to the discretion and favor of the court. Here the defendant asks no favor; he denies the jurisdiction of the justice. If the facts deprived the justice of jurisdiction it was the defendant's right to show them."

The foregoing views lead to the conclusion that this court ought not to disturb the discretion exercised by the County Court of Orleans county, and its judgment must, therefore, be affirmed.

All concurred.

Judgment affirmed, with costs.