New York Supreme Court, 1895

Hawkins v. Smith

New York Supreme Court · Decided December 2, 1895 · Pratt

36 N.Y.S. 333; 98 N.Y. Sup. Ct. 299; 71 N.Y. St. Rep. 117; 91 Hun 299 (New York Supplement)

Counsel

Elliott J. Smith, for appellant., George H. Furman, for respondent.

Opinion of the Court

PRATT, J.

No principle is better settled than that no appeal lies from a judgment taken by default. Code, § 1294; Avery v. Woodin, 44 Hun, 269. The defendant’s remedy was to move to open his default. The recital that two justices of the sessions were present with the county judge, and took no part in the decision, does not invalidate the judgment. The proceeding was entitled in the county court, the county judge was present, and defendant has appealed from a judgment of the county court. Judgment affirmed, with costs. All concur.

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