Appellate Terms of the Supreme Court of New York, 1900

Stone v. Smith

Stone v. Smith
Appellate Terms of the Supreme Court of New York · Decided April 15, 1900
31 Misc. 740; 64 N.Y.S. 139

Counsel

Bushby & Berkeley (L. M. Berkeley, of counsel), for appellant., Stem & Singer (William J. Barr, of counsel), for respondent.

Stone v. Smith

Opinion of the Court

Per Curiam.

It does not appear from the defendant’s moving affidavit that the court- did not take proof of plaintiff’s claim be*741fore rendering judgment as required by the Code. The defendant, assailing the judgment on the ground of an alleged irregularity, was required to affirmatively establish it by affidavit. The absence of the proof from the judgment-roll does not aid the defendant’s contention, because the proof taken either on a default or on a trial of issues never forms part of the judgment-roll. Nothing appearing to the contrary, we are to assume that the court below performed its duty and took the necessary proof to establish the allegations of the complaint.

Order affirmed, with costs.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Order affirmed, with costs.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.