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Schwartz v. Mutual Alliance Trust Co.

111 N.Y.S. 610 Court N.Y. App. Term Decision date 1908-06-30 English

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p. 610
SCHWARTZ v. MUTUAL ALLIANCE TRUST CO.
(Supreme Court, Appellate Term.
June 30, 1908.)

Headnote

Appeal and Ebbop.—Default Judgment—Appealability.
A judgment of the Municipal Court of the city of New York, rendered against defendant after his withdrawal.from the ease on the court properly overruling his motion for a stay of proceedings or a dismissal, is a judgment by default, from which no appeal lies.
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Abram Schwartz against the Mutual Alliance Trust Company. Erom an order of the Municipal Court denying a motion to stay proceedings in the action or a dismissal thereof, defendant appeals.
Dismissed.
Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
Eugene G. Kremer, for appellant.
Joseph S. Rosalsky (Abraham Landau, of counsel), for respondent.

Eor the reasons given in the case of McKown v. Oppenheimer (decided at the present term) 111 N. Y. Supp. 609 , it is clear that the defendant herein had no right either to a stay of proceedings- or a dismissal of the action by reason of the failure of the plaintiff to pay the costs entered in a judgment against him in a prior action. It also appears from the record that, after the court refused the defendant’s motion to grant a stay or to dismiss the action, the defendant withdrew from further participation in the trial, and the plaintiff took an inquest, and thereupon entered a judgment. Such judgment was, therefore, one taken by default, and from such a judgment no appeal lies.

Appeal dismissed, with costs.