Jewell v. Heinzel

6 Daly 411

• Court: New York Court of Common Pleas
• Decided: April 3, 1876
• Status: Published

Opinion

Charles P. Daly, Chief Justice.

Where a judgment is taken by default before a justice, and an appeal is brought to set aside the judgment, the appellant must not only excuse his default, but satisfy the court by affidavit that manifest injustice has been done. The defense which he has, must be clearly set forth and sworn to, and if contradicted by the affidavit of the respondent it must be corroborated. A mere affidavit of merits is not enough (Fowler v. Colyer, 2 E. D. Smith, 125 ; Gottsberger v. Harned, Id. 128; Van Wyck v. Kelly, Id. 128), which is all that is submitted by the defendant upon this appeal. The appeal must, therefore, be dismissed.

Joseph F. Daly and Van Hoesen, JJ., concurred.

Appeal dismissed.