Roth v. Light — 129 N.Y.S. 23

Majority

p. 23

ROTH et al. v. LIGHT et al.

(Supreme Court, Appellate Term.

May 4, 1911.)

Headnote

Appeal and Ebrob (§ 127*)—Decisions Reviewable—Judgment by Default.

Under Code Civ. Proc. § 1294, providing for appeals" unless the judgment complained of was rendered on default, no appeal lies from the default judgment rendered, though it be by motion to open the same.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 885-891; Dec. Dig. § 127.*]

Appeal from City Court of New York, Trial Term.

Action by Henry Roth and another against Benjamin Light and others. From a judgment of the City Court of the City of New York, defendants Light and Weinberg appeal.

Appeal dismissed.

Argued before SEABURY, LEHMAN, and GERARD, JJ.

J. L. Weinberg, for appellants.

Edward Mandel, for respondents.

This is an appeal by two of the defendants from a judgment of the City Court, entered on the default of the defendants. The court below having ordered the trial to proceed, this judgment was entered by default. Section 1294 of the Code provides:

“A party may appeal, in a case prescribed in this chapter, except where the judgment or order of which he complains, was rendered upon his default.”

The right to appeal is statutory. Jones v. Sabin, 122 App. Div. 666 , 107 N. Y. Supp. 508 . The defendants’ remedy was to move to open the default. Hawkins v. Smith, 91 Hun, 299 , 36 N. Y. Supp. 333 .

The appeal must be dismissed, with $10 costs. All concur.