Hyperlawhypertext legal database Hawkins v. Smith 98 N.Y. Sup. Ct. 299

← Cases

Hawkins v. Smith

98 N.Y. Sup. Ct. 299 Court N.Y. Gen. Term English

Judges Brown, P. J., and Dykman, J., concurred.

Delivered by Pratt, J. :

Contents

Majority

p. 299
Thomas L. Hawkins, Respondent, v. Alonzo E. Smith, Appellant.

Headnote

Appeal — judgment by default, how renewed — recital in a judgment of a County Court that two justices of the Sessions were present.
No appeal lies from a judgment taken by default, tbe remedy of the defendant being to move to open the default.
Where a proceeding is entitled in a County Court, and the county judge was present when the decision was rendered, and the defendant has appealed specifically from a judgment of the County Court, the judgment is not invalidated by a recital in it that two justices of the Sessions were present with the county judge.
Appeal by the defendant, Alonzo E. Smith, from a judgment of tlie County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 5th day of June, 1895, upon the decision of the court rendered after an inquest taken upon the defendant’s default at the Suffolk County Court.
This action was brought to recover $267.45, alleged to have been the balance due on account of certain work and labor performed by the plaintiff at the request of the defendant. The action having been brought on for trial at the Suffolk County Court, the defendant moved, upon an affidavit of merits, for a postponement of such trial. Upon the denial of such motion the defendant withdrew, whereupon an inquest was taken and a decision rendered in favor of
p. 300
the plaintiff. From the judgment entered upon such decision the defendant ajipeals.
Elliott J. Smith, for the appellant.
George H. Furman, for the respondent.

No principle is better settled than that no appeal lies from a judgment taken by default. (Code Civ. Proc. § 1294; Avery v. Woodi/n, 44 Hun, 269 .) The defendant’s remedy was to move to open his default. The recital that two justices of Sessions were present with the county judge and took part in the decision does not invalidate the judgment.

The proceeding was entitled in the County Court; the county judge was present, and the defendant has appealed from •&. judgment of the County Court.

Judgment affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.