Whitney v. Bayard — 4 N.Y. Super. Ct. 634

Majority

p. 634

Whitney v. Bayard.

Headnote

On an appeal from a justice’s court, the judgment will be reversed by default, if the respondent do not appear to argue the appeal.

Jany. 27, 1849.

In this case, the respondent did not appear, on the appeal being moved, and the question was raised, whether under the code of procedure, this court would reverse the judgment below by default, or must look into the case on an argument ex parte.

said the appeal is a mere substitute for the for

p. 635

mer certiorari, to bring up the judgment for review. On the certiorari, error was assigned in form, and judgment was always reversed by default, if the defendant in error did not appear. In the affidavit for the appeal, there is a regular assignment of errors required by the statute. The legal effect of the proceeding is the same as before. The nature of the case is not changed, and the practice must be the same.

Judgment reversed by default.