18 N.Y.S. 48 | N.Y. Sup. Ct. | 1892
On the 20th of Hovember, 1889, a judgment was entered against the defendants Moses and Julius Strauss in favor of the-
Two questions are raised upon this appeal. The first is whether the judgment was void upon its face; and the second, whether, as matter of fact, and, from proof of extraneous circumstances, it was invalid. The latter proposition it is not necessary to consider. No such issue was presented by the-complaint, and although evidence was taken in respect thereto, and the learned judge seems to have passed upon the same, yet, as it was not within, the scope of the pleadings, and they never having been amended for the purpose of conforming the pleadings to the proof, this question was improperly considered by the court, and the result of the decision it is not necessary to-review here. If it may be said that the court should amend the pleadings to-conform the same to the proof, the proof having been taken without objection, it may be suggested, in the first place, that objections appear as to some-of the proof, and also that a complaint is never amended for the purpose of' reversing a judgment, although such amendments are made in some instances for the purpose of sustaining a judgment.
The next point is in regard to the notice of appearance. The indorsement upon the notice of appearance forms no part of the essence of the paper. It was dated on the 18th of October. The suit had been commenced a sufficient length of time in order to justify the entry of the judgment if process had been served; and, although the notice of appearance bears date prior to the time of the date of the summons, that would not invalidate its effect; and it is to be presumed, in the absence of evidence to the contrary, that it was served upon the day it bears date, as every presumption is in favor of the regularity of a judgment. There is nothing, therefore, upon the face of the judgment roll which indicates a want of jurisdiction in the court in the entry of the same. It may be questionable as to whether the court was j ustifled in decreeing an amendment of the judgment roll in this action; but, as no point is raised in that regard upon this appeal, it is not discussed. The judgment should therefore be affirmed, with costs.