Majority
p. 320Peter J. Lansing, Resp’t, v. Samuel Stevens, Impleaded, etc., App’lt. (Supreme Court, General Term, Third Department, Filed November 20, 1888.)
Headnote
Justice’s court — When plaintiff cannot recover without provino his claim—Laws 1881, chap. 414—Code Crv. Pro., § 8891.Where an action was brought in the city court of Albany, by the service of a summons and verified complaint, and on the day of trial the defendant demurred to the complaint, the justice overruling the demurrer, with leave to the defendant to answer, but defendant fails to answer, Held, that judgment could not be entered in favor of plaintiff without proof.
Appeal by the defendant, from a judgment of the county •court of Albany, affirming a judgment of the city court of Albany.
This" action was commenced in the city court of Albany, to recover for goods (consisting chiefly of lumber and building material) sold and delivered to the defendant, Samuel : Stevens, and one John J. Van Schoonhoven. A summons •and verified complaint were served on the defendant Stevens •on the 15th day of August, 1887.
On the 22d day of August, 1887, the return day named in the summons, the case was called and the plaintiff appeared and filed a verified complaint. The defendant Stevens -appeared and filed a demurrer to the complaint on the .ground that it did not state facts constituting a cause of •action. The demurrer was overruled with leave to file verified answer. Defendant Stevens did not file a verified answer, and objected to judgment being taken against him unless the plaintiff proved his case, which objection was •overruled. Judgment was thereupon rendered in favor of the plaintiff and against the defendant Stevens, without proof on the part of plaintiff, for $359.44 damages, and costs, $5.90.
The defendant Stevens appealed to the county court of Albany county, from said judgment, on question of law. The county court affirmed the judgment of the city court of Albany. Defendant Stevens appeals from the judgment of the county court of Albany county, affirming the judgment of the city court of Albany.
Geo. H. Stevens, for app’lt; Eugene Burlingame, for resp’t.
The precise question which is presented upon this appeal, has been decided by the general term of the second district, Oulman v. Schmidt, 35 Hun, 345 . The decision was placed upon that ground, although there was another fatal defect in the proceedings in that case, which was considered, as appears by the opinion. That case was cited as authority in Thomas v. Jones, 47 Hun, 81 . We think the case of Oulman v. Schmidt (supra), should be followed by this court.
The judgment of the county court, and of the city court of Albany, should be reversed, with costs.
. Landon, J., concurs.