Furci v. Furci

45 A.D.2d 1003, 358 N.Y.S.2d 195, 1974 N.Y. App. Div. LEXIS 4241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1974
• Status: Published

Opinion

Appeal by the defendant husband from an order of the Supreme Court, Queens County, dated March 14, 1973, upon his default, which denied his motion for an order (1) vacating a previous judgment of said court dated January 5, 1972 (also obtained upon default) directing him to pay the plaintiff wife the sum of $5,465 on account of alimony, mortgage payments and counsel fees, (2) granting him leave to oppose the motion upon which the above judgment was made. Appeal dismissed, without costs. A party may not appeal directly from an order entered upon his default, the proper remedy being an application to open the default made to the rendering court (see CPLR 5511, 5015; Bishop v. Gilmore, 30 A D 2d 696; Ross v. Magid, 22 A D 2d 829; D’Aliso v. Toback, 9 A D 2d 894; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5511.10; Cohen and Karger, Powers of the New York Court of Appeals [rev. ed.], ■§ 93). Latham, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.