Tisdale v. Moore

146 A.D. 561, 131 N.Y.S. 141, 1911 N.Y. App. Div. LEXIS 3306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1911
• Status: Published

Opinion

Woodward, J.:

The notice of appeal in this,case is “that the defendants herein, hereby appeal to the Appellate Division, of the Supreme Court, in and for the Second Judicial Department from the decision of Mr. Justice McLaughlin, dated July 21st, 1910, denying the motion of the defendants to open the default' on the judgment entered herein *■ * * in favor of the plaintiff and against the defendants for the sum of four hundred seventy-nine and Aro- ($179.65) dollars, and the defendants appeal from each and every part of said decision.”

We know of no provision of law which justifies an appeal from a decision of the Municipal or any other court; an appeal ■ must be from a judgment or order. Even the undertaking On appeal recites that “Whereas, on the Twenty-first day of July, 1910, a decision was made and entered in the above-entitled action denying a motion of the defendants to open the default on the judgment heretofore entered * * ...* and the said defendants feeling aggrieved thereby, and having appealed therefrom,” etc. The reasoning of the court in Starr v. Silverman (25 Misc. Rep. 784) is applicable to the present .situation, and justifies a dismissal of the appeal. , \ -

Upon the merits we are of the opinion that the" defendants ■have failed to .show any substantial reason for openingbthe default. The plaintiff appears to have been entirely reasonable in granting extensions of time; the amended complaint, a copy of which must have been served with the moving papers. (Stern. v. Knapp, 52 N. Y. Super. Ct. 14), was regularly in the hands 1 of the defendants, for the order provided that “said motion be \ granted and that the proposed amended complaint, filed herein, Í supersede the complaint already filed in this action,” so that the suggestion of the defendants that they have never been served with the complaint in this action is untenable. The rule is, where the amendment of a complaint is made by order of the court, that the order should direct that the proposed pleading should be served, or should stand as the new pleading in the case, and the party will be confined to the . pleading proposed by his motion papers. (1 Rumsey Pr. [1st ed.] 367, and authority there cited.) The rule requiring a copy of the proposed pleadings to be . served with the motion papers, supplemented by the order that the' proposed amended complaint supersede the original complaint, is certainly sufficient service, and the defendants not having shown any sufficient reason for granting a motion to open a default the decision of the court below is proper.

The appeal should be dismissed, with costs.

Jerks, P. J., Thomas, Carr and Rich, JJ., concurred.

Appeal dismissed, with costs.