Hyperlawhypertext legal database Hawkins v. Smith 36 N.Y.S. 333

← Cases

Hawkins v. Smith

36 N.Y.S. 333 Court N.Y. Gen. Term Decision date 1895-12-02 English

Delivered by PRATT, J.

Contents

Majority

p. 333
HAWKINS v. SMITH.
(Supreme Court, General Term, Second Department.
December 2, 1895.)

Headnote

Appeal—Judgment by Default.
A judgment by default is not appealable.
Appeal from Suffolk county court.
Action by Thomas L. Hawltins against Alonzo E. Smith to recover the sum of $267.45 for work, labor, and services rendered to.,defendant from March 1, 1891, to February 1, 1895. Defendant answered by general denial, and both plaintiff and defendant serve notice of trial. At the hearing, counsel for defendant moved for a postponement, which was denied, whereupon plaintiff took judgment by default, and defendant appeals.
Affirmed.
Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
Elliott J. Smith, for appellant.
George H. Furman, for respondent.

No principle is better settled than that no appeal lies from a judgment taken by default. Code, § 1294; Avery v. Woodin, 44 Hun, 269 . The defendant’s remedy was to move to open his default. The recital that two justices of the sessions were present with the county judge, and took no part in the decision, does not invalidate the judgment. The proceeding was entitled in the county court, the county judge was present, and defendant has appealed from a judgment of the county court. Judgment affirmed, with costs. All concur.