Jewell v. Heinzel — 6 Daly (N.Y.) 411

Majority

p. 411

Robert Jewell against Clara Heinzel.

(Decided April 3d, 1876.)

Headnote

When a judgment is taken, by default in a justice’s court, and an appeal is brought to this court to set aside the judgment, the appellant must not only excuse his default, but satisfy the court by affidavit, that manifest injustice has been done. The defense which he has must be clearly set forth and sworn to, and if contradicted by the affidavit of the respondent, it must be corroborated. A mere affidavit of merits is not enough.

Appeal from a judgment entered by default in a District Court.

Where a judgment is taken by default before a justice, and an appeal is brought to set aside the judgment, the appellant must not only excuse his default, but satisfy the court by affidavit that manifest injustice has been done. The defense which he has, must be clearly set forth and sworn to, and if contradicted by the affidavit of the respondent it must be corroborated. A mere affidavit of merits is not enough (Fowler v. Colyer, 2 E. D. Smith, 125 ; Gottsberger v. Harned, Id. 128; Van Wyck v. Kelly, Id. 128), which is all that is submitted by the defendant upon this appeal. The appeal must, therefore, be dismissed.

Joseph F. Daly and Van Hoesen, JJ., concurred.

Appeal dismissed.