Stone v. Smith

Appellate Terms of the Supreme Court of New York

Stone v. Smith

31 Misc. 740, 64 N.Y.S. 139

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1900

StatusPublished

Cited by1 cases

This text of 31 Misc. 740 (Stone v. Smith) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stone v. Smith, 31 Misc. 740, 64 N.Y.S. 139 (N.Y. Ct. App. 1900).

Pincite

Opinion

Per Curiam.

It does not appear from the defendant’s moving affidavit that the court- did not take proof of plaintiff’s claim be[741]*741fore rendering judgment as required by the Code. The defendant, assailing the judgment on the ground of an alleged irregularity, was required to affirmatively establish it by affidavit. The absence of the proof from the judgment-roll does not aid the defendant’s contention, because the proof taken either on a default or on a trial of issues never forms part of the judgment-roll. Nothing appearing to the contrary, we are to assume that the court below performed its duty and took the necessary proof to establish the allegations of the complaint.

Order affirmed, with costs.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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Per Curiam.

It does not appear from the defendant’s moving affidavit that the court- did not take proof of plaintiff’s claim be[741]*741fore rendering judgment as required by the Code. The defendant, assailing the judgment on the ground of an alleged irregularity, was required to affirmatively establish it by affidavit. The absence of the proof from the judgment-roll does not aid the defendant’s contention, because the proof taken either on a default or on a trial of issues never forms part of the judgment-roll. Nothing appearing to the contrary, we are to assume that the court below performed its duty and took the necessary proof to establish the allegations of the complaint.

Order affirmed, with costs.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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Bluebook (online)

31 Misc. 740, 64 N.Y.S. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-smith-nyappterm-1900.

Opinion

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