Degener v. Underwood ( 1892 )

By the Court.—Dugro, J.

There is authority for a appears and makes a defence, a new trial will not be granted because of a failure to give notice of trial (Yonge v. Fisher, 2 Dowl. N. S., 637 ; Doe D’Antrobus v. Jepson, 3 B. & A. D., 402; Thermolin v. Cole, 2 Salk., 646; see 3 Wait’s Pr., 31 and 397; Rumsey’s Pr., vol. 2, page 405); but regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of them laches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defence.

By the order of July 9, the clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2 to April 9, and the costs and disbursements, in all $40.53, less than the amount of the judgment entered by the clerk. The entry of the judgment should be corrected accordingly. A careful examination of the case discloses no error requiring a reversal. The judgment, entered as ordered, to be corrected, is affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.