Whitney v. Bayard
The Superior Court of New York City
In this case, the respondent did not appear, on the appeal being moved, and the question was raised, whether under the code of procedure, this court would reverse the judgment below by default, or must look into the case on an argument ex parte.
1Opinion of the Court
The Court
said the appeal is a mere substitute for the for*635mer certiorari, to bring up the judgment for review. On the certiorari, error was assigned in form, and judgment was always reversed by default, if the defendant in error did not appear. In the affidavit for the appeal, there is a regular assignment of errors required by the statute. The legal effect of the proceeding is the same as before. The nature of the case is not changed, and the practice must be the same.
Judgment reversed by default.
2Cited by2 opinions
- Derby v. HanninNew York Supreme Court · 1857
- Derby v. HanninNew York Supreme Court · 1856