Kerr v. Walter

Appellate Division of the Supreme Court of New York

Kerr v. Walter

104 A.D. 45, 93 N.Y.S. 311

Appellate Division of the Supreme Court of the State of New York·Decided April 15, 1905·Published·Cited by 10 cases

Opinion

Per Curiam:

The alleged error in the remittitur is .admitted by counsel for the appellant to be “ in itself a trivial and unimportant matter.” Moreover, the counsel lias fallen into error himself by making it appear in his order.to show cause that the remittitur recites “that counsel for plaintiff-respondent appeared upon said argument.” There was in fact no oral argument of'.the appeal, and the remittitur merely recites “ and the said appeal haying been submitted by Mi- Harcourt Bull, of counsel for the appellant arid by Mr. Herman S. Butler of Counsel for the respondent,” etc. No reason ¡appears for changing this recital. ' i " , ,

The appeal in this cas,e was by the defendant from a judgment by default rendered in the Municipal Court of the city of New York, and if the defendant did not appear in the action, an appeal could be taken from the judgment. ■, (N. Y. : Mun. .Ct. .Act,' [Laws of 1902, chap. 580], § 311.)' Cbunsel for appellant ear-nestly contends that there was no general appearance for the defendant, but the' record is conclusively against him, for it'appears by the justice’s affidavit’and the stenographer’s, minutes that on November 27, 1903, the return day of the summons, the “ defendant’s counsel ” appeared specially and upon being 'informed by the court “ that if he did not plead generally, judgment would be given by default against the defendant. Counsel for. defendant then pleaded ■ generally.” This “ counsel,” as appears by the affidavit of ,the real counsel, had not been admitted tó practice as an attorney and was " forbidden to practice by section 63 of the Code of Civil Procedure, but the real counsel who sent him there cannot avail himself of the imposture, if such it was, which he made possible. He afterward attempted 'to withdraw the gerieral appearance, and judgment was . rendered for the plaintiff after an inquisition. "The defendant having once appeared in the action, the court gained .jurisdiction, and [47] the defendant, subsequently permitting judgment by default, is not at liberty to appeal from the judgment.

For these reasons the motion should in all respects be denied, with costs.

Bartlett, Woodward, Jenks and Miller, JJ.,_ concurred.

Motion denied. .

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Per Curiam:

The alleged error in the remittitur is .admitted by counsel for the appellant to be “ in itself a trivial and unimportant matter.” Moreover, the counsel lias fallen into error himself by making it appear in his order.to show cause that the remittitur recites “that counsel for plaintiff-respondent appeared upon said argument.” There was in fact no oral argument of'.the appeal, and the remittitur merely recites “ and the said appeal haying been submitted by Mi- Harcourt Bull, of counsel for the appellant arid by Mr. Herman S. Butler of Counsel for the respondent,” etc. No reason ¡appears for changing this recital. ' i " , ,

The appeal in this cas,e was by the defendant from a judgment by default rendered in the Municipal Court of the city of New York, and if the defendant did not appear in the action, an appeal could be taken from the judgment. ■, (N. Y. : Mun. .Ct. .Act,' [Laws of 1902, chap. 580], § 311.)' Cbunsel for appellant ear-nestly contends that there was no general appearance for the defendant, but the' record is conclusively against him, for it'appears by the justice’s affidavit’and the stenographer’s, minutes that on November 27, 1903, the return day of the summons, the “ defendant’s counsel ” appeared specially and upon being 'informed by the court “ that if he did not plead generally, judgment would be given by default against the defendant. Counsel for. defendant then pleaded ■ generally.” This “ counsel,” as appears by the affidavit of ,the real counsel, had not been admitted tó practice as an attorney and was " forbidden to practice by section 63 of the Code of Civil Procedure, but the real counsel who sent him there cannot avail himself of the imposture, if such it was, which he made possible. He afterward attempted 'to withdraw the gerieral appearance, and judgment was . rendered for the plaintiff after an inquisition. "The defendant having once appeared in the action, the court gained .jurisdiction, and [47] the defendant, subsequently permitting judgment by default, is not at liberty to appeal from the judgment.

For these reasons the motion should in all respects be denied, with costs.

Bartlett, Woodward, Jenks and Miller, JJ.,_ concurred.

Motion denied. .

Kerr v. Walter, 104 A.D. 45, 93 N.Y.S. 311 (N.Y. Ct. App. 1905).

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Opinion

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