Biggs v. Saladino

246 A.D. 632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Action for accounting, for damages for conversion of funds, for recovery of shares of stock unlawfully taken, for reassignments of mortgages to plaintiff unlawfully held by defendant and for other relief. After the trial had begun and plaintiff had testified, the parties agreed upon a settlement of the controversy and entered into a written stipulation which in part the defendant performed. Defendant then moved to vacate the stipulation and the order of discontinuance and was granted a new hearing. The trial was renewed. On this trial he and his attorney appeared; but without substitution another attorney sought to represent the defendant. The court would not recognize his right to appear for defendant. As a result, no further proof was offered in defendant’s behalf. Findings were made in favor of the plaintiff and judgment entered thereon. The defendant submitted no proposed findings, and has filed no exceptions to those made by the court; and is, therefore, in no position to question irregularities in the judgment. There appear to be no merits to the defense and it does appear that the default made by the defendant on the trial was willful and deliberate. Judgment unanimously affirmed, with costs. No opinion. Present — Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ.