Stone v. Smith

31 Misc. 740 | N.Y. App. Term. | 1900

Per Curiam.

It does not appear from the defendant’s moving affidavit that the court- did not take proof of plaintiff’s claim before rendering judgment as required by the Code. The defendant, assailing the judgment on the ground of an alleged irregularity, was required to affirmatively establish it by affidavit. The absence of the proof from the judgment-roll does not aid the defendant’s contention, because the proof taken either on a default or on a trial of issues never forms part of the judgment-roll. Nothing appearing to the contrary, we are to assume that the court below performed its duty and took the necessary proof to establish the allegations of the complaint.

Order affirmed, with costs.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Order affirmed, with costs.