Kozuch v. Frey

In an action to recover possession of real property, the appeal is (1) from a judgment entered after inquest in favor of the respondents upon a default in appearance and in pleading, and (2) from an order denying, without a hearing, appellants’ motion to vacate said judgment, despite the contention by the appellant Lillian Prey that she was never served with process. Appeal from judgment dismissed, without costs. No appeal lies from a default judgment. Order affirmed, without costs. The record justifies the determination of Special Term that both appellants were served with process and that their default was deliberate. Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur; Nolan, P. J., concurs in the dismissal of the appeal from the judgment and in the affirmance of the order as to appellant Walter J. Prey, but dissents from the affirmance of the order as to appellant Lillian Prey, and votes to reverse the order as to said appellant and to remit the motion to the Special Term for the purpose of holding a hearing to determine whether said appellant was duly served with process.