89 N.Y.S. 200 | N.Y. App. Div. | 1904
This action was brought to recover a judgment of divorce. Certain issues were tried before a jury and thereafter the cause was placed upon the Special Term calendar, Part 3, for trial.
We think this order should be reversed. Under the facts set out in the moving papers, none of which are denied, the defendant’s attorney was entitled to notice of the application for judgment, and such'notice not having been given, the judgment should have been vacated.
It does not appear that any decision was ever made, and if this be true, that is also fatal to the judgment. (Reynolds v. AEtna Life Ins. Co., 6. App. Div. 254; Hall v. Beston, 13 id. 116 ; McManus v. Palmer, Id. 443.)
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Present—Van Brunt, P. J., Patterson, O’Brien, McLaughlin and Hatch, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.