Reynolds Securities, Inc. v. Underwriters Bank & Trust Co.

57 A.D.2d 522, 393 N.Y.S.2d 568, 1977 N.Y. App. Div. LEXIS 11428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1977
• Status: Published

Opinion

Order of the Supreme' Court, New York County, entered July 9, 1976, denying defendant-appellant’s motion to set aside a judgment entered on May 7, 1976, unanimously affirmed# and appeal from said judgment is unanimously dismissed, with one bill of $60 costs and disbursements of these appeals to respondent. We affirm the order of July 9, 1976 for reasons stated by Korn, J., at Special Term. The appeal from the judgment is dismissed, inasmuch as a judgment entered by default is not appealable (CPLR 5511; Stehlik v City of New York, 22 AD2d 777; Ross v Magid, 22 AD2d 829). If we were not dismissing the appeal we would affirm the judgment. (See Bishop v Gilmore, 30 AD2d 696.) The judgment was entered pursuant to order, entered April 19, 1976, striking answer of defendant-appellant (CPLR 3126, 3215) and granting judgment in sum of $21,768.67, with interest, costs and disbursements. It was appropriate to assess respondent’s damages solely from respondent’s papers (complaint) which alleged it lost that sum, arrived at by computing the difference between the sale price and cover price set forth in the complaint for the stock in question (see CPLR 3215). An inquest was not necessary. "If the damages, though unliquidated, can be established by paper alone and do not require oral testimony, the court should make the assessment.” (Siegel, Practice Commentaries, Book 7B, CPLR 3215, C3215.8, p 868.) The judgment was entered in that sum by the clerk at the direction of the court. Concur—Kupferman, J. P., Lupiano, Birns and Markewich, JJ.