150 N.Y.S. 1039 | N.Y. App. Div. | 1914
Lead Opinion
I concur entirely with the presiding justice that the judgment sought to be appealed from is erroneous, and that whenever properly brought before this court it must be reversed or substantially modified. Clearly the defendant is aggrieved by it, and the only question is whether or not it should have sought redress by an appeal from .the judgment or by moving at Special Term, and if its motion for relief had been denied, appealing from the order denying the motion. That question depends upon the further question whether or not the judgment was one rendered on default, within the meaning of section 1294 of the Code of Civil Procedure.
The history of the case may be briefly stated as follows: The action called in question the amount assessed upon plaintiff as a member of a mutual benefit life insurance company. It charged not only that excessive assessments had been collected in the past, but that defendant unless restrained would continue to levy such excessive assessments in the future. Judgment was demanded (1) for an injunction as to future assessments, (2) for an accounting as to assessments collected in the past, and (3) the recovery of the amount found due upon such accounting.
The defendant demurred upon several grounds, those chiefly relied upon being lack of jurisdiction of the defendant and of the subject-matter of the action.
The issues of law thus raised were brought on for hearing at Special Term and an interlocutory judgment entered overruling the demurrer, the judgment giving leave to defendant
Instead of granting an injunction and directing an accounting as prayed for in the complaint, and as defendant might reasonably-have expected would have been the judgment granted, the court proceeded to take ex parte affidavits, and thereupon to make findings of fact as to the amounts which defendant had been overpaid. This, of course, was wholly irregular, and we are bound to assume that if defendant had appeared upon the motion and'made proper representations to the court, no such irregular and unauthorized judgment would have been entered.
Was this judgment one entered by default within the meaning of section 1294 of the Code of Civil Procedure ?
A similar question was considered by the General Term in the Fourth Department in Smith v. Barnum (3 N. Y. Supp. 476). In that case, as in this, the defendants had demurred, their demurrer was overruled, they served no answer, and thereupon judgment was entered for plaintiff. Defendants appealed and it was objected that the judgment was unappealable, having been entered on default. The court said: “In the order overruling the demurrers leave was given to withdraw the demurrers and to serve an answer within twenty days after the service of a copy of such interlocutory judgment upon them. The order further provided, viz.: If they shall not withdraw their demurrers as herein provided, and answer the complaint, then the plaintiff shall have final judgment against them for the relief demanded in the plaintiff’s complaint.’ Inasmuch as the judgment is entered in pursuance of the direction contained in the order, we are of the opinion that it was not a judgment
The same question came before the Appellate Division in the Second Department in Mathot v. Triebel (102 App. Div. 426). That was an action to establish a lien and the complaint asked inter alia that “ the extent of this plaintiff’s said lien and claim be ascertained and determined and the defendant adjudged to pay the same. ” The defendant demurred and, upon his demurrer being overruled, failed to answer, whereupon plaintiff moved for judgment. The court awarded final judgment for the amount claimed in the complaint. The defendant appealed from the judgment, and it was objected that an appeal would not lie because the judgment had been entered on default. The court, however, entertained the appeal, saying: “ The demurrer was equivalent to a general appearance (Code Civ. Proc. § 421), and the defendant was entitled to notice of the assessment by the clerk, as well as of the application to the court (Id. § 1219) and to ‘ challenge the amount of recovery, even by affirmative evidence, in diminution of damages.’ (Bassett v. French, 10 Misc. Rep. 672; appeal dismissed, 155 N. Y. 46.) ”
In the present case the plaintiff was entitled to enter judgment for the relief demanded in the complaint, by virtue of the interlocutory judgment overruling the demurrer. That judgment, so far as it could be entered in advance of an accounting was only for an injunction and an accounting. To that extent the defendant could not have successfully opposed the motion for judgment and it was, therefore, unnecessary for it to appear in opposition. It was, however, not called upon to anticipate that the court would go further and decree the amount due without an accounting and without legal evidence.
I am, therefore, of the opinion that the judgment was not one entered on default within the meaning of section 1294 of the Code of Civil Procedure as heretofore construed, and that it is, therefore, appealable.
Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
This record presents a peculiar condition, .from which has resulted the entry of a final equity judgment, enjoining the defendant and for a sum of money, on affidavits, without an accounting or other trial or investigation. The relief demanded in the complaint was: “ (1) That the defendant be perpetually enjoined from assessing the plaintiff upon his aforesaid contracts at a rate in excess of two dollars and sixty-eight cents per one thousand dollars ($1,000), on a total indemnity of $1,000,000; (2) that the defendant render an accounting to the plaintiff of the sums of money received from the plaintiff in excess of said rate of $2.68 since the 15th day of January, 1900, with interest upon each successive payment since the date of said payment; and (3) that the plaintiff have judgment against the defendant for the sum so found to be due the plaintiff upon such accounting, and that the plaintiff have such other and further relief as may to the court seem just and equitable, besides the costs and disbursements of this action.” To that complaint the defendant interposed a demurrer, which was overruled at Special Term, and on appeal the interlocutory judgment was affirmed in this court (159 App. Div. 121). The defendant was allowed leave to withdraw the demurrer and to answer. Failing to serve an answer within the time allowed, defendant was, therefore, in default, and plaintiff was entitled to judgment for the relief prayed for in the complaint, i. e., an injunction and an accounting. The defendant being in default, the plaintiff moved for final judgment at Special Term on notice to defendant. The defendant did not
This,was clearly irregular. The application for judgment was made under the Code of Civil Procedure. Section 1215 of the Code provides: “ The court, or a judge or justice thereof, must thereupon render the judgment to which the plaintiff is entitled. It, or they, may, without a jury, or with a jury if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it, or them, to render the judgment, or to carry it into effect; or it, or they, may, in its, or their, discretion, direct a reference, or a writ of inquiry, for either purpose; * * Section 1207 of the Code provides: “Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint.” Undoubtedly the court could have taken an accounting on this application by the plaintiff for judgment for the relief demanded in the complaint, the defendant not appearing to oppose it, or could have appointed a referee to take such an account. But receiving affidavits was not taking an account as demanded, and the judgment entered thereon seems to be clearly irregular.
The judgment was entered upon the defendant’s default. It recited: “ This case having been regularly brought before this Court on the plaintiff’s application for judgment, on due notice to the defendant’s attorney, and it appearing that the defendant has not answered the complaint herein within the time allowed therefor, after the defendant’s demurrer to the complaint had been overruled, and the Court having heard the evidence produced by the plaintiff in his behalf and no one appearing in opposition, and the court having made its findings of fact and conclusions of law, now, on motion of Hooker I. Coggeshall, the plaintiff’s attorney, it is Ordered, Adjudged and Decreed, First: That the defendant, Hartford Life Insurance Company, be and hereby is perpetually enjoined and
I think if the defendant had appeared in the court below and opposed the application for judgment, it then could have appealed from that judgment and brought up for review the interlocutory judgment which this court had affirmed. Section 1316 of the Code of Civil Procedure, providing for the review of interlocutory judgments and intermediate orders, authorizes such an appeal. Of course, so far as the appeal to this court was concerned, this court having passed upon the interlocutory judgment on a former appeal, it would have been an appeal pro forma, but the defendant had the right to appeal to the Court of Appeals from the final judgment and, as the interlocutory judgment had not been reviewed by the Court of Appeals, the defendant had the right to appeal from the judg- ■ ment of this court to the Court of Appeals and to bring up
The appeal should, therefore, be dismissed.
Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.
