Anderson v. Thorps

Appellate Terms of the Supreme Court of New York

Anderson v. Thorps

113 N.Y.S. 730

Appellate Terms of the Supreme Court of New York·Decided December 16, 1908·Published

Opinion

PER CURIAM.

This action came on for trial on June 22, 1908, and after a partial trial was adjourned until June 26, 1908. Upon that day the plaintiff failed to appear, and the defendant was sworn in [731]*731her own behalf, and after hearing her testimony, on motion of the defendant’s counsel, the case was dismissed and a judgment entered against the plaintiff for costs, from which judgment this appeal comes up.

Upon the failure of the plaintiff to appear upon the adjourned day the court should have dismissed the action. Section 248, subd. 2, Municipal Court Act (Laws 1902, p. 1561, c. 580). Permitting the defendant to introduce the testimony of the defendant did not avail either party. The judgment, however, being one taken upon the default of the plaintiff, no appeal will lie therefrom.

Appeal dismissed, with $10 costs.

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PER CURIAM.

This action came on for trial on June 22, 1908, and after a partial trial was adjourned until June 26, 1908. Upon that day the plaintiff failed to appear, and the defendant was sworn in [731]*731her own behalf, and after hearing her testimony, on motion of the defendant’s counsel, the case was dismissed and a judgment entered against the plaintiff for costs, from which judgment this appeal comes up.

Upon the failure of the plaintiff to appear upon the adjourned day the court should have dismissed the action. Section 248, subd. 2, Municipal Court Act (Laws 1902, p. 1561, c. 580). Permitting the defendant to introduce the testimony of the defendant did not avail either party. The judgment, however, being one taken upon the default of the plaintiff, no appeal will lie therefrom.

Appeal dismissed, with $10 costs.

Anderson v. Thorps, 113 N.Y.S. 730 (N.Y. Ct. App. 1908).

Pincite

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