Opinion
March, 1906.
Nathaniel Levy, for appellant.
Sulzberger Kringel, for respondent.
Except in cases where no service of the summons is made, an appeal does not lie from a judgment entered on default. The proper practice is to move to open the default. Brown v. Bouse, 43 Misc. 72. If the motion be denied, an appeal will lie. Schrenkenson v. Krose, 85 N.Y.S. 1072. The affidavit presented to the justice as a ground for the adjournment of the trial was wholly insufficient. The affidavit on the motion to open the default did, however, present some excuse for the defendant's failure to appear. We incline to the view that the defendant should be allowed to present his defense, if he has one; although, as his answer stands at present, we cannot see that it raises any issue of fact. It certainly does not allege payment which, we infer from the affidavit, is the defense intended to be relied upon.
The appeal from the judgment will be dismissed, with ten dollars costs. The order denying the motion to open the default will be reversed and the cause directed to be tried, upon the payment by defendant to plaintiff's attorney, within five days, of the costs included in the judgment. No costs to either party upon appeal from the order, and the judgment already entered is to stand as security.
Present: SCOTT, O'GORMAN and NEWBURGER, JJ.
Appeal dismissed, with costs; order reversed and cause directed to be tried, upon payment by defendant to plaintiff's attorney, within five days, of costs included in judgment. No costs to either party upon appeal from order, and judgment already entered to stand as security.