SOLOMON v. ROTHBAUM et al.
(Supreme Court, Appellate Term, First Department.
January 20, 1916.)
1. Courts <@^>190—Municipal Court—Decisions Appealable.
Under Municipal Court Code (Laws 1915, c. 279) § 154, specifying judgments and orders appealable, and declaring that an appeal may be taken from an order granting or denying a motion to open a default, no appeal can be taken from a default judgment, or from a memorandum denying a motion to open, but the appeal must be taken from, an order denying the motion to open the default.
[Ed. Note.—For other cases, see Courts, Dec. Dig. <@=^190.]
<g^>For oilier eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
*10942, Judgment <@=^173—Default—Opening—Orders—Scope of.
Under Code Civ. Proe. § 767, defining the form of an order, an order denying a motion to open a default should recite all of the papers used upon the hearing, or, if a short form order, refer to .the papers by number.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 340; Dec. Dig. <@=173J
Action by Joseph Solomon against David Rothbaum and another. There was a default judgment for plaintiff, and defendants appeal, and by second notice appeal from a memorandum denying their motion to open the default. On motion to dismiss the appeals.
Motions granted.
Argued January term, 1916, before GUY, P. J., BIJUR and GAVE-GAN, JJ.
Bernard E. Nathan, of New York City, for appellants.
Mortimer W. Solomon, of New York City, for respondent.
PER CURIAM.
[1, 2] The defendants, by notice of appeal dated December 22, 1915, appealed from a judgment in favor of the plaintiff entered by default, and by a second notice of appeal, dated December 23, 1915, appealed from “a memorandum denying the motion to open the. default.” No appeal lies from a “memorandum,” and no appeal lies from a default judgment. Section 154, Municipal Court Code. There should be an order entered denying the motion to open the default, which should recite all the papers used upon the hearing, or a short form order, referring to the papers used by number. Section 767, C. C. P.; Kirschner v. Abbott’s Bakeries, Inc., 156 N. Y. Supp. 107.
Motion to dismiss appeals granted.