Hoag v. Hatch — 19 N.Y. St. Rep. 823

Majority

p. 823

Richard Hoag, Resp’t, v. Thyrsa E. Hatch et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed November 20, 1888.)

Headnote

Practice — Appeal—Irregularity in judgment by default — How-cured.

Where judgment was taken by default as for want of an answer, if the judgment was wrong or irregular, the defendant should move to set it aside; should (hat be refused he can appeal; but he cannot take an appeal and be heard in review of a judgment taken as for want of an answer.

Appeal from a judgment in foreclosure, with'notice tnat appellant intends to review an order of the special term, made by consent of both parties, directing a reference to determine a question of payment, and in case the defendants did not consent to and have the reference, then their amended answer to be stricken out.

B. B. Mason, for app’lts; A. W. Boynton, for resp’t.

This is an action of foreclosure. The defendants answered. The plaintiff moved to strike out the answer as sham, and for judgment thereon as frivolous. The court granted the motion unless defendants consented to a reference to determine the amount due; reference to be had in six days and report in twenty, and appointed a referee. The defendants did not consent. The referee acted and reported. Thereupon, without notice, the court made an order striking out the defenses as sham and frivolous, and ordered the usual reference to compute the amount due May 22. Due service of notice of reference was admitted. The referee reported and thereupon, without notice (so far as appears), judgment of foreclosure was entered. The defendants appeal from the judgment, and ask to review on such appeal the order striking out the answers unless defendant would consent to a reference. Code Civil Procedure, section 1316.

There seems to have been much irregularity in the proceedings, and in the ordering a compulsory reference. But the difficulty is that, as the case stands, we cannot review ■fifeosc preceedings or that order..

p. 824

The judgment was taken by default as for want of an answer. If that judgment was wrong or irregular, the defendants should have moved to set it aside. Should that be refused, they could appeal. But they cannot take an appeal and be heard in review of a judgment taken as for want of an answer. Because the court below has not passed on the question between the parties. The defendants could have appealed from the order striking out the answer; but as they have not done this, the answer stands stricken, out, and the judgment, is granted for want of an answer. From such a judgment no successful appeal can be taken. For if there was no answer, then plaintiffs were entitled to judgment. That the judgment was taken without notice to defendants, is an irregularity to be corrected by motion at the special term.

Therefore, as we cannot review the judgment, we cannot review the order as to which defendants desire a review.

All intermediate orders culminate in the general judgment. _ Since the judgment was not opposed, we cannot reverse it, and therefore it would be idle to reverse an intermediate order. On the record, the defendants stand assenting to the judgment, and therefore as waiving any opposition to any intermediate order leading to it. They should have appealed from the order.

We need not say, however, that in no possible case could an appeal be taken from a judgment for want of an answer.

Judgment affirmed, with costs.

All concur.