Smith v. Barnum
New York Supreme Court
Appeal from special term, Otsego county. Action by Frank L. Smith, as receiver, against Curtis A. Barnum and others. A demurrer to the complaint was overruled, and, on failure of defendants to answer, final judgment was entered for plaintiff. Defendants appealed, giving notice that they intended to bring up for review the order overruling the demurrer, and the interlocutory judgment rendered thereon.
1Opinion of the CourtHardin, P. J.
In the order overruling the demurrers leave was given to withdraw the demurrers, and to serve an answer within 20 days after the service of a copy of such interlocutory judgment upon them. The order further provided, viz.: “If they shall not withdraw their demurrers as herein provided, and answer the complaint, then the plaintiff shall have final judgment against them for the relief demanded in the plaintiff’s complaint.” Inasmuch as the judgment is entered in pursuance of the direction contained in the order, we are of the opinion that it was not a judgment by default. Our attention is…
2Cases cited2 opinions
- Williams v. . ThornNew York Court of Appeals · 1877
- Campbell v. . FosterNew York Court of Appeals · 1866
3Cited by3 opinions
- People v. Manhattan Real Estate & Loan Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Furniss v. FurnissAppellate Division of the Supreme Court of the State of New York · 1911
- Sauerbrunn v. Hartford Life InsuranceAppellate Division of the Supreme Court of the State of New York · 1914