Bullard v. . Sherwood

Finch, J. Judgment in this case was taken by default. Its entry 'by the clerk was an exact and literal compliance with the provisions of the Code. That directs, in a case where application to the court is unnecessary, and where the summons and complaint have been personally served, and the latter is verified, that the judgment be entered for the sum demanded in the complaint, unless the plaintiff chooses to dictate a smaller sum, and for this purpose the clerk is -authorized to compute interest if necessary. The party, therefore, who makes default in presence of these provisions practically consents to' such entry of judgment. He thereby admits that he is indebted in the full amount claimed and concedes that judgment should be entered for that sum. In a case where judgment can only be taken on application to the court, it may well be said, as the respondent claims, that a default admits only the facts pleaded and not the legal conclusions of liability, or its extent. The cases cited by the respondent were of that character. (Ar gall v. Pitts, 78 N. Y. 243; Wright v. Hooker, 10 id. 59; Frick v. White, 57 id. 107.) The very requirement of an application to the court implies a judicial determination of the proper judgment to be rendered which is not at all controlled by the legal conclusions of the pleader. But the result is different where no application is necessary. There the sum • demanded must be awarded, and no discretion is lodged anywhere. It is the inevitable consequence of a default, and the party in. default must be taken to have admitted both the right of recovery and its amount. It is for this reason that he cannot appeal. To permit that would enable him to retract his consent, and contradict his admission. What could not be done by an appeal ought not to be allowed to be done *257 by a motion. To permit it would furnish a way to circumvent the rule. In the present case, the question raised and argued is the plaintiff’s right to recover interest. That is a matter of substance and not of form. It was conceded by the default,' and yet, in the form of a motion, has been contested with all the force and effect of an appeal. If that can be done as to a part of plaintiff’s claim why not as to the whole 1 And if that is possible it amounts almost to a demurrer after judgment. We agree, therefore, with the conclusions reached by the Special Term. The only proper remedy of the defendants, if illegally charged with interest, was to excuse their default, and come in and defend. They could then offer judgment for the amount they admitted to be just and defend as to the residue. Whether the interest claimed was proper and lawful is a question they ought not to be permitted to raise so long as they stand in the attitude of having admitted its justice and legality by their default. They must change that position or submit.. The cases cited on behalf of the appellant sustain his claim that if error existed in the allowance of interest it was a judicial error, and one of substance, which cannot be corrected on motion. (Lillie v. Sherman, 39 How. Pr. 287; Libby v. Rosekrans, 55 Barb. 203; N. Y. Ice Co. v. N. W. Ins. Co., 32 id. 534.) It seems to us an unwise precedent to sustain the ruling of the General Term, and likely to lead to undesirable results. Unless a default can be opened, and the contest proceed regularly, it is best rather to repress than encourage after litigation. We think, therefore, the order of the General Term should be reversed. The defendant asks a renewed opportunity to appear and defend. We are disposed to grant it, but upon the condition as to costs and the statute of limitations imposed by the Special Term, and upon the further condition of the payment of costs of the appeals. The order of General Term should be reversed, and that of Special Term affirmed, with costs; with leave to defendant to appear and plead in the action within ten days after service of a copy of this order, upon payment within such time of the costs *258 of the appeals, and npon the conditions, within the time hereby allowed, of the order of the Special Term. All concur, except Folgeb, Oh. J., dissenting. Ordered accordingly.