Degener v. Underwood — 49 N.Y. St. Rep. 324

Majority

p. 324

Frederick L. Degener, Resp’t, v. John T. Underwood et al., App’lts.

(New York Superior Court, General Term,

Filed December 5, 1892.)

Headnote

New trial—Failure to serve notice oe trial.

A new trial will not be granted because of a failure to serve notice of trial, where the appellants fail to seek relief by motion to vacate the proceedings before the referee before presentation of their defense.

Appeal from judgment in favor of- plaintiff, entered upon report of a referee.

James A. Hudson, for app’lts ; J. E Ludden, for resp’t.

There is authority for the proposition that where a defendant appears and makes defense, a new trial will not be , granted because of a failure to give notice of trial, Younge v. Fisher, 2 Dowl, N. S., 637; Doe d' Antrobus v. Jepson, 3 B. & Ad., 402; Thermolin v. Cole, 2 Salk, 646; see 3 Wait’s Pr., 31 and 397; 2 Eumsey’s Pr., 405 ; but, regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of their loches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defense. By the order of July 9th, the clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2d to April 9th, and the costs and disbursements, in all $40.53 less than the amount of the judgment entered by the clerk. The entry of the judgment should be corrected accordingly.

p. 325

A careful examination of the case discloses no error requiring reversal.

The judgment entered as ordered to be corrected is affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.