Hoffnung v. Grove — 18 Abb. Pr. 14

Majority

p. 14

HOFFNUNG a. GROVE.

Supreme Court, First District;

At Chambers, February, 1864.

Headnote

Failure to Answer.—Judgment-Roll.—Adjustment of Costs.

Where a motion for judgment on the answer as sham and frivolous had been denied upon defendant’s claim that there was no answer in the case: Held, that plaintiff was strictly regular in entering judgment as upon a failure to answer.

The original summons is not a necessary part of the judgment-roll.

A judgment, entered without notice of the adjustment of the costs, is not irregular.

Motion to set aside judgments for irregularity.

The first action was by Abraham Hoffnung against William Grove and Frederick Allison; the second action was by Jules Sazerte against the same defendants. The defendants served answers, which plaintiffs’ attorney returned as informal and defective. The answers were not re-served. Plaintiffs made motions against the answers as sham and frivolous. Defendants objected that the answers could not be brought before the court, the plaintiffs’ attorney having returned them: the objections prevailed, and the motions were denied, with costs. Adjusted costs without notice, and entered judgments, which defendants now moved to open for irregularity.

p. 15

Titus B. Eldridge, for the motion, urged,

1. That the original summons was not inserted in the judgment-rolls. 2. That the costs were adjusted without notice. 3. That the judgment on failure to answer was unauthorized.

George Bowman, opposed.

I. The original summons is not required in judgment-roll. (Code, § 281; 2 Whit. Pr., 505.)

II. The adjusting of the costs without notice, did not make the judgment irregular. (Stinson a. Huggins, 9 How. Pr., 86 ; Gilmartin a. Smith, 4 Sandf., 684 ; Chapin a. Churchill, 12 How. Pr., 367 : Henry a. De Bow, 20 Ib., 215; 2 Whit. Pr., 499, 502.)

III. The plaintiff having refused to receive, and having returned the answers, and the defendants having since kept them without objection—and defeating the former motion by that objection—is estopped, and cannot be heard in objection. If a party to an action proceeds upon an order made in the cause, or accepts any benefit or advantage under it, he will be precluded from asking a review. (Radway a. Graham, 4 Abbotts' Pr., 468.)

—The defendants’ counsel having, upon the motions to strike out as frivolous and sham, raised the preliminary objection that such motion could not be heard because the plaintiff’s attorney had returned the answers to him, and therefore they were no longer answers in the cause, and having succeeded in having his preliminary objection held good by the court, cannot now insist that the judgment entered is irregular, because there were answers in the cause which had not been disposed of by order of the court or trial. The other objections have been considered, and are not deemed sufficient to vacate the judgment.

Motions denied, with $10 costs.