Davies v. Myers ( 1908 )

GILDERSLEEVE, P. J.

This is an appeal taken from a judgment entered against the defendants in favor of the plaintiff by default, and also from an order denying the defendants’ motion to open their default. No appeal will lie from a judgment taken upon default after a summons has been served, and therefore the appeal from the judgment herein must be dismissed. Brown v. Bouse, 43 Misc. Rep. 72, 86 N. Y. Supp. 240. An appeal from the order denying a motion to open a default will lie, however, and the motion in the court below having been based, not only upon affidavits tending to excuse the defendants’ failure to appear upon the trial, but also upon the testimony taken upon the inquest, showing that the plaintiff failed to prove a cause of action against the defendants; and the testimony given upon such inquest having been returned upon the appeal herein, this court can examine the record, and, if satisfied that the judgment has no foundation, can open the defendants’ default in the lower court. Costello v. 42d St. Ry. Co., 50 Misc. Rep. 628, 98 N. Y. Supp. 648. The plaintiff bases his claim to a recovery herein upon a request made by the defendants to procure a quantity of appraisals. The plaintiff testifies that such request was made “through a Mr. Corbin.” No connection whatever is shown between this Mr. Corbin and the defendants, and the evidence of employment of the plaintiff by the defendants is therefore too vague and uncertain to warrant the maintainance of a judgment, when the defendants ask to be permitted to have their day in court. An examination of the affidavits upon which the motion to open the default was based leads also to the conclusion that the defendants’ default should have been opened, and the order denying their motion is therefore reversed and their default opened.

Appeal from the judgment dismissed, and order reversed with costs to the appellant to abide the event and defendants’ default opened in the lower court. All concur.