Mayor of New York v. Green

Ingratiaji, First Judge. — The defendant did not appear in the court below, and judgment was recovered against bim by default. lie now appeals to this court, and asks for a reversal on two grounds: first, for errors on the trial; second, on the ground that injustice had been done, and an alleged excuse for his default. The notice of appeal does not specify any ground of appeal, but refers to the affidavit and the proceedings on the trial as the place where such grounds of appeal may be found. [394] So far as any error is alleged in tbe proceedings before tbe justice, tbe defect in tbe notice, in not stating tbe grounds of appeal, is conclusive upon tbe defendant. Tbe 353d section of tbe Code is positive, tbat tbe notice must state tbe grounds of appeal. In Schwartz v. Bendel (2 E. D. Smith, 123), tbis point was considered, and tbe court say, “ Tbe statute is explicit on tbis subject, and we should be warranted in dismissing tbe appeal on tbis ground.” If, however, it be said tbat tbe remedy is by motion, tbe grounds are not sufficient for reversal. Tbe error pointed out in tbe affidavit is tbe omission of sums, dates, and a reference to tlm statute in tbe complaint. No objection to tbe pleading was tSen, as tbe defendant did not appear; and although tbe filing of such a complaint and tbe action of the court show great negligence in rendering judgment upon it, in its imperfect condition, yet, as all tbe defects were supplied by the evidence, and no barm could arise to tbe party from such negligence, we do not feel warranted in reversing tbe judgment on tbis technical ground, even if we could overlook tbe defect in tbe notice. Tbe excuse offered by tbe defendant is hardly sufficient. He does not deny tbat be bad a summons, or tbat be was thereby informed of tbe time at which be was to appear. On tbe contrary, he went to look for a counsel on tbat morning, and. not finding him, went to tbe court on the day, but after judgment bad been rendered. Tbe only excuse be gives is, tbat be was ignorant of law proceedings. Tbis shows no excuse for not understanding what tbe summons told him was necessary, viz., to appear on a day and at an hour and place therein stated. His own conduct shows that be knew it' was proper for him to go to tbe court to protect bis rights, but tbat be delayed in attending to what be should have done till after tbe time specified bad expired. Nor does it appear from bis affidavit tbat injustice has been done. He states in it tbat “be denies that be has violated any of the ordinances of tbe plaintiffs, in manner and form as set [395] forth in tbe complaint.” This is a mere matter of opinion, whether or not he has violated them.. If he wished to satisfy the court that injustice had been done, by the judgment, he should show, by a statement of facts, that the charge — made out by the evidence on the trial' — was not true. On the contrary, he does no such thing. He asks this court to decide that injustice has been done him by the judgment, because he swears that he denies that he has violated the ordinances. He does not even swear that he has not violated them, but he affirms that he denies the violation — when the truth of such denial is not sworn to. If a defendant wishes to obtain a new trial in such a case, he must point out the mode in which injustice has been done, a¿d leave to the court, and not assume himself, the decision of t®t question. In Mix v. White (1 E. D. Smith, 614), it was said the defendant must swear that the defence was true in fact. In Fowler v. Colyer (2 E. D. Smith, 125), it was held that a mere affidavit of merits disclosed no defence, and was not sufficient to warrant the granting a new trial. Judgment affirmed.