City Trust, Safe Deposit & Surety Co. of Philadelphia v. American Brewing Co.
New York Court of Appeals
Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 12, 1904, which affirmed a judgment in favor of plaintiff entered upon an assessment of damages and from an order of said Appellate Division which affirmed an order of Special Term denying a motion to set aside such assessment of damages.
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Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 12, 1904, which affirmed a judgment in favor of plaintiff entered upon an assessment of damages and from an order of said Appellate Division which affirmed an order of Special Term denying a motion to set aside such assessment of damages. The complaint in this action, in substance, alleges that on the 11th day of November, 1898, the plaintiff, as surety for one John M. Kurtz, executed a bond to the People of the State of New York in the penal sum of one…
1DissentO’Brien, J.
There is no question in this case except such as arises upon proceedings to assess damages upon a stipulation for judgment absolute.
I cannot concur in the opinion for two reasons: (1) The orders are not appealable to this court. There are some propo-. sitions on that point that I will state from the adjudged cases in this court and that I suppose no one will dispute.
Ho appeal to any court will lie from a judgment entered upon default. (Code Civ. Proc., sec. 1294.)
The proceedings for assessing damages after default in answering and proceedings for assessing damages upon a stipulation for…
2Cases cited4 opinions
- Bossout v. Rome, Watertown & Ogdensburg R. R. Co.New York Court of Appeals · 1892
- Bassett v. . FrenchNew York Court of Appeals · 1898
- City Trust, Safe Deposit & Surety Co. of Philadelphia v. American Brewing Co.New York Court of Appeals · 1903
- Lewin v. . Lehigh Valley R.R. Co.New York Court of Appeals · 1902