Legal Opinion

Affirmance on Default

The Superior Court of New York City

Decided January 15, 1869PublishedCited by 3 opinions

Upon the call of the calendar during the January general term, a judgment was affirmed on default. Upon an application to open the default and to vacate the order of affirmance, it appeared that the “case” had not been settled; and it was claimed that, therefore, the appeal was not in readiness to be heard, or the cause properly upon the calendar. On granting the motion, the court, after consultation with all the judges, made the following decision:

1Opinion of the Court

By the court, Monell, J.

The practice which has prevailed to some extent of allowing a respondent to notice an appeal for argument, place the cause upon the calendar, and *367upon its call to move for an affirmance of the judgment, notwithstanding the “case” had not been served, or had not been settled, or had not been filed, or the printed case had not been served, has occupied so much of the time of the court in hearing motions to open defaults, or to postpone arguments, which motions are made upon oral statements of counsel, not always uncontradicted, that it has become necessary for the court…

2Cited by3 opinions

  1. Brown v. NiessNew York Court of Common Pleas · 1874
  2. Carraher v. CarraherThe Superior Court of New York City · 1871
  3. Smith v. Ingham UniversityNew York Supreme Court · 1894

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