39 Misc. 813 | N.Y. App. Term. | 1903
In the order and decision of the trial justice sustaining the demurrer it is recited that the attorney for the plaintiff appeared in support of the demurrer, and no one appeared in opposition thereto. An interlocutory judgment was thereupon entered, directing that in case the defendants do not within six days after service of a copy of the interlocutory judgment serve an amended answer and pay costs, then plaintiff may enter final judgment. The defendants failed to amend or pay costs, and final judgment was entered against them. The defendants have appealed from both the interlocutory and final judgments. The plaintiff contends that no appeal lies under these circumstances. Section 1294 of the Code of Civil Procedure provides: “A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default.” An order containing a recital that the motion is granted after hearing counsel for the moving party and no one appearing in opposition thereto, is.granted on default, and no appeal can be taken therefrom. Hatter of Peekamose Fishing Club, 5 App. Div. 283. As no one appeared in opposi
The definition of default as a failure to appear and contest a point of law or fact by presentation of counter argument or proof has been applied in many cases. Where there has been no opposition to a referee’s report or when there has been a stipulation that judgment be entered thereon, no appeal lies from such judgment. Boyd v. Bigelow, 14 How. Pr. 511. Mr. Justice Marvin, construing the right to appeal under an early statute, says: “ This will not include judgments, orders or final determinations, upon default, or rendered or made upon stipulation. The General Term cannot be called upon to examine the ease until it has been presented, contested and passed upon at a Special Term.” Smith v. Velie, 60 N. Y. 106. But on the other hand, although no motion had been made to set aside the referee’s report, it was held that an appeal lies, where the merits had been argued on a motion to confirm the report and for judgment thereon. Kellogg v. Clark, 23 Hun, 393. So also, no appeal lies from a judgment, entered upon an inquest, taken at the trial. Keller v. Feldman, 2 Misc. Rep. 179; Greenleaf v. Brooklyn, etc., R. R. Co., 37 Hun, 435. Where, on motion, duly noticed, an answer is stricken out as sham or on the ground that it is frivolous, and no one appeared in opposition to such motion, a judgment rendered thereon is by default and no appeal lies. Flake v. Van
Freedman, P. J., and Greenbaum, J., concur.
Appeal dismissed, with costs.