Pultz v. Diossy

Daly, C. J. A judgment by default from which no appeal will lie, is one where the defendant neglected to appear at all, a judgment under such circumstances being regarded as equivalent to a confession of judgment; and the only remedy whiefi a defendant has in such a case is a motion to the court to open the default, which is a motion to the favor (Maltby agt. Green, 3 Abb. Ct. App. Dec., 147 ; Adams agt. Oakes, 20 Johns., 284, 285). By the Code¿ an appeal would lie to this coiu-t from a judgment where the defendant failed to appear before the justice, if he excused his default and showed that manifest injustice had been done, which had to be established by affidavits served with the notice of appeal. If the defendant, however, appeared, and put in an answer upon which the cause was adjourned to a future day, and he failed to appear upon that day, no appeal would lie to open it as a default, it not being a case in which the defendant, in the language of the Code, “had failed to appear ” (Wilde agt. N. Y. and Harlem R. R. Co., [272] 1 Hilt., 302; Dunker agt. Latchman, 1 E. D. Smith, 410 ; Edwards agt. Doe, 2 id., 56; Story agt. Bishop, 4 id., 423). In such a; case, however, an appeal will lie to reverse the judgment for error, and it will be reversed if it appears by the return that it was not warranted by the evidence (Hunt agt. Westervelt, 4 E. D. Smith, 225 ; Story agt. Bishop, id., 423 ; Teas agt. Christie, 2 id., 638). It is not necessary to consider whether the power given by the statute (chap. 484, p. 975) .has abrogatéd the power of this court to open judgments upon default by appeal where the default is excused, and it is shown that manifest'injustice has been done, as this is not the kind of judgment by default in which the defendant failed to appear, which is considered as equivalent to a confession of judgment; but one in which he did appear and joined issue, and upon which an appeal would lie to reverse the judgment upon error, as in such a case the plaintiff, though the defendant failed to appear upon the adjourned day, is bound to establish his cause of action by evidence, and if he has not done so the judgment will be reversed. There is no ground, therefore, for a motion at the special term to dismiss the appeal, because the defendant failed to appear on the adjourned day to try the issue; nor in such a ease is a defendant required to make a motion in the court below to open the default, as such án application is made to the favor of the court, and therefore one in which conditions may be imposed; but if the - judgment was rendered without sufficient evidence to warrant it, the defendant has the right to have it reversed by an appeal to the tribunal that has the authority to review it (Howard agt. Brown, 2 E. D. Smith, 247; Alburtis agt. McCready, id., 39 ; Everett agt. Parks, 62 Barb., 9, 15 ; Northrup agt. Jackson, 13 Wend., 85). The motion to dismiss the appeal, therefore, must be denied.