p. 283In the Matter of the Application of One of the Two Trustees of The Peekamose Fishing Club, a Corporation, for its Dissolution. Edward N. Whiton and Anthony W. Dimock, Appellants; J. Q. A. Ward, Respondent.Headnote
A party in default cannot appeal.An appeal does not lie from an order recited to have been made on default.
Appeal by Edward N. Whiton and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1895, ordering that their exceptions to the report of the referee in the action be overruled, that said report be confirmed and that The Peekamose Fishing Club be dissolved, and appointing a receiver of said corporation and ordering that said receiver file a bond and give notice of his appointment as required by law and also notify all parties to present claims against said corporation.
Also from an order entered in said clerk’s office on the 6th day of November, 1895, resettling said order of October 26, 1895.
George H. Hart, for the appellant Dimock.
J. Alexander Koones, for the appellant Whiton.
David McClure, for the respondent.
The appeal from these two orders must be dismissed. The original’ order entered on the twenty-sixth day of October, appears to have been resettled, and that order was consequently vacated by the order resettling it. By the order as resettled it appears that appellant Whiton was in default. The appellant Dimock applied for an adjournment, which was refused, whereupon his counsel withdrew, and the order as resettled contained a recital that no one appeared on behalf of the respondent Whiton, and the motion was then decided after hearing David McClure, Esq., of counsel for the petitioner, and on. that motion the order was entered. This was evidently an order
p. 284granted on default, and from an order entered on default no appeal can be taken. (§ 1294 of the Code.) This appeal is, therefore, dismissed, with ten dollars costs and disbursements.
Barrett, Rumsey and Williams, JJ., concurred.
Appeal from orders dismissed, with ten dollars costs and disbursements.