43 Misc. 72 | N.Y. App. Term. | 1904
The appellant appeals from a judgment entered in favor of the plaintiff herein and states in his notice of appeal that he intends to bring up for review upon this appeal the determination of the trial court in denying the defendant’s motion to vacate an attachment. The record shows that the action was begun by the service of a warrant of attachment, returnable July 28, 1903. That prior to the return day the defendant appeared specially and moved to vacate the attachment upon the ground of the insufficiency of the papers upon which the same was granted. This motion was denied. Upon the return day the defendant appeared generally and the case was adjourned until August 18, 1903, the defendant to answer by August 14, 1903. It was thereafter adjourned from time to time until August 25, 1903, when, the defendant not appearing on the last named day and no answer having been filed, the plaintiff took a judgment by default, and from such judgment this appeal is taken.
The respondent urges that as the judgment appealed from was taken by default no appeal will lie. Formerly it was held that, although an appeal from a judgment of a court of record, taken by default, would not lie, Code Civ. Pro., § 1294, a different rule prevailed in respect to appeals from judgments of the District Courts. Hurry v. Coffin, 11 Daly, 180.
This decision was based upon section 3213 of the Code of Civil Procedure, which provided that an appeal from a judgment rendered in a District Court of the city of New York may be taken in the cases and in the. manner prescribed in articles 1 and 2 of title 8 of chapter 19 of that act. Section 3046, being part of article 1 aforesaid, permitted appeals from judgments rendered in actions “ wherein he (defendant) did not appear,” and, although the power to open defaults in the District Courts was given, it in no way abridged the right to appeal from a judgment taken by default. 11 Daly, supra. Section 363 of the Municipal Court Act (Laws of 1902, chap. 580) has, however, repealed sections 3207 to 3214, Code of Civil Procedure, inclusive, and provides that none of those sections shall apply to actions or proceedings
There seems to he no provision in the Municipal Court Act for such an appeal as this, and the appellant herein stands in no better position than if he had defaulted in a court of record. Neither can this case he considered as falling within the provisions of section 91 of the Municipal Court Act (J. H. Mohlman Co. v. Landwehr, 83 N. Y. Supp. 1073), as the defendant appeared in court although he defaulted in answering. It follows, therefore, that the defendant’s remedy is- to open his1 default in the court below, and until he does that he has no standing in this court. See Edelson v. Epstein, 27 Misc. Rep. 543; 58 N. Y. Supp. 334.
Mac ¡Leah and Davis, JJ., concur.
Appeal dismissed, with ten dollars costs.
