Majority
p. 629Samuel B. Potter et al. plaintiffs vs. James R. Carreras, defendant. Heard October 9, 1865.
Headnote
An answer stricken out, on motion, as sham, is the same thing as if no answer had been put in. When the time to answer has expired the plaintiff can enter judgment as upon the defendant’s default. No order for judgment being necessary or proper, although one is entered, the plaintiff should appeal from the order, and not from the judgment.(Before Monell and Gakvin, JJ.)
In this case a motion was made at special term, to strike out the defendant’s answer, as sham. The motion was granted, and an order entered, wherein it was ordered that the answer of the defendant be stricken out as false and sham, and that judgment be rendered for the plaintiff. Judgment was accordingly entered, reciting that the answer of the defendant had been stricken out as false and sham, and ordering judgment for the plaintiffs for $3046.85.
The defendant appealed from the judgment. Eo appeal was taken from the. order striking out the answer.
p. 630
A. H. Wagner, for the appellant.
BJ. W.. Chester, for the respondents.
By the Court,
The practice in this case is so clearly irregular, that we cannot have a moment’s hesitation in dismissing the appeal.
The motion was to strike out the answer, and it was stricken out; whereupon, if the time to answer had expired, the plaintiffs could enter judgment, as upon the default of the defendant. Ko order for judgment, upon striking out the answer, was proper or necessary. The answer being stricken out, it was as if no answer had been put in. Ko appeal lies from a judgment by default.
The proper practice was to appeal from the order, not from the judgment,- The case of Briggs v. Bergen, ( 23 N. Y. Rep. 162 ,) is conclusive.
The judgment must therefore be affirmed.