Oeters v. Groupe
The Superior Court of New York City
Motion to set aside a judgment of affirmance taken by default. The appellant had never served any case, nor obtained any extension of time to do so, although the time allowed for that purpose had. long since passed. The respondent noticed the appeal for argument, put it on the calendar, and, the appellant not appearing when the cause was called, the respondent took a judgment of affirmance by default.
1Opinion of the Court
By the Court.*—Bosworth, Ch. J. (orally).
In this case a judgment of affirmance was taken by default, which the appellant moves to set aside as irregular, on the ground that no case had been prepared or served, and that, therefore, the appeal was not ready for any decision. In support of this view he cites Rule 42 of the Supreme Court, allowing the respondent, in such case, to move for a dismissal of the appeal. This remedy is not, we think, exclusive. The appellant alone was in fault for not having prepared the papers, and we think that ■the respondent was entitled to disregard the fact, and,…
2Cited by2 opinions
- Brown v. NiessNew York Court of Common Pleas · 1874
- Wheeler v. McCabeNew York Court of Common Pleas · 1874