Innes v. . Purcell

| NY | Sep 29, 1874

Flake v. Van Wagenen (54 N.Y., 25" court="NY" date_filed="1873-03-05" href="https://app.midpage.ai/document/flake-v--van-wagenen-3613995?utm_source=webapp" opinion_id="3613995">54 N.Y., 25) merely reaffirms a well settled principle, and is decisive of this appeal. There as here, in an action for a foreclosure of a mortgage, the answer of the defendant was stricken out on motion unopposed, and judgment was perfected as upon default, for want of an answer, and on appeal to the General Term of the Supreme Court, the judgment was dismissed.

In this action the motion to make the answer more definite and certain was opposed; but that part of the order then made directing the answer to be stricken out in case the answer should not be amended was modified, by stipulation of the parties, and in lieu of such direction a clause inserted that the "plaintiff have leave to move for judgment for want of such answer." The defendant did not appeal from that order. The plaintiff made a motion upon notice, pursuant to the consent and stipulation of the defendant, based upon an affidavit stating the history of the procedings, that the answer be stricken out, and for general relief, and also for an order of reference to compute the amount due on the mortgage and for judgment. This motion was granted by default, and this order is at the foundation of, and alone authorizes the judgment appealed from. Judgment was perfected as upon a failure to answer, and it would be a departure from all precedent to permit an appeal from a judgment thus entered, and upon such appeal review the order and direction of the court for judgment made upon default. The order requiring the answer to be made more definite and certain did not necessarily affect the judgment or involve the merits of the action, and was not, therefore, reviewable under section 329 of the Code. It is enough, however, that the order disposing of the merits of the action, and for judgment, was granted by default; and the appeal was properly disposed of by the court below.

The remedy of the defendant is by application to the court below for relief, and if she has merits, that court will make such order as will be equitable. The order appealed from must be affirmed.

All concur.

Order affirmed.