
    Charles W. Avery et al., Resp'ts, v. Antoinette Woodin et al., App'lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887.)
    
    1. Pleadings—Uncontroverted allegations—Code Crv. Pro., § 532.
    It is provided by Code Civil Procedure, § 522, that each of the material allegations of the complaint not controverted by the answer * *. must for the purposes of the action be taken as true. Held, That where no issue of fact was raised by the answer the complaint should be taken as true.
    .2. Appeals—No appeal can be made by party in default—Code Civ. . Pro., § 1,294.
    It is provided by Code Civil Procedure, § 1,294, that a party aggrieved may appeal in a case prescribed in that chapter, except where the judgment or order of which he complains, was made upon his default. Held, that a party was not entitled to prosecute an appeal while in default.
    Motion by plaintiffs, who are the respondents, to dismiss the appeal, “upon the ground that said appeal is taken from a judgment rendered or made by default, and is unauthorized, and upon the further ground that no case and exceptions has been made and filed.”
    This action was commenced during September, 1884, for the purpose of obtaining the actual partition of certain lands described in the complaint,-and in case that could not be done their sale. After a description of the lands which were sought to be partitioned the complaint alleged “that the plaintiff Charles W. Avery has an estate of inheritance therein of an undivided four-elevenths interest in the fee thereof; that the plaintiffs Charles Burghart and Richard Burghart own jointly an undivided one-eleventh interest in the fee thereof * * * that the defendant Jacob Burghart owns a similar estate therein of an undivided three-elevenths interest in the fee thereof; that the defendant Antoinette Woodin owns a similar estate therein of an undivided one-eleventh interest in the fee thereof. ”
    The appellant never served an answer. At the Onondaga special term an order was granted May 30, 1885, whereby a referee was appointed “to take proof of the rights, shares and interests of the several parties in the property, of the several matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises and an abstract of the conveyances by which the same are held. “All the defendants were adults except Thomas McMahon, Jr., and Mary Estella McMahon, who were infants, for whom a guardian ad litem was appointed as appears from the order.
    The referee was required to inquire and report whether the whole premises, or any lot or separate parcel thereof, was so situated that an,.actual partition could not be made and whether there were any liens, “and also whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance by judgment or otherwise,” etc. An attorney appeared for the present appellant but served no. answer. The aforesaid order was made upon notice and a stipulation by the attorney aforesaid.
    The referee made his report on August 25, 1885, in which he stated: “That having been attended by the attorneys for the several parties who appeared in the case, I proceeded to a hearing of the matter so referred. I further report that on such hearing I took proof of the several matters set forth in said complaint, and find that the material facts therein alleged are true, and I further find and report that the following is an abstract of the conveyances by which the premises described in said complaint are held. “Further,” that the premises described in said complaint are so circumstanced that an actual partition thereof cannot be made without a great prejudice to the owners thereof.” The report stated the facts and reasons for such conclusion. The appellant was before the referee and objected to the referee’s “finding as requested by the plaintiffs, ” and requested the referee to find differently.
    The report was presented to the Onondaga special term on October 31, 1885, notice having been given to the defendants who had appeared. The court pronounced an interlocutory order of judgment, after hearing argument by the respective parties. In said judgment it was declared: “The plaintiff Charles W. Avery is seized of and entitled in fee to an undivided four-elevenths interest in said premises,” and “the defendant Antoinette Woodin, is seized of and entitled to an undivided one-eleventh interest in the fee thereof.”
    It was further adjudged that the referee sell the premises, and make report of the sale and that the proceeds be distributed' as in said order directed.
    At a special term held in said county on March 27, 1886,. after notice to the attorney for the defendants who had. appeared, an application was heard for confirmation of the-report of such sale and for final judgment. No appearance at such special term was made in behalf of the defendant, and judgment was granted confirming the sale and directing the referee “to pay to the defendant Antoinette Woodin the sum of $143.31, being the amount of her share in the-proceeds of said sale.” The interloctory judgment was-rendered January 28, 1886. The time to appeal therefrom expired March 30, 1886. No appeal was taken. Final judgment was taken by default March 30, 1886. This was, taken with a notice of intention to review the interlocutory judgment.
    
      Avery & Murry, for the motion; Louis Marshall, opposed.
   Hardin, P. J.

Section 522 of the Code of Civil Procedure provides “ each material allegation of the complaint, not controverted by the answer * * * must, for the-purpose of the action, be taken as true.”

Section 1249 of the Code of Civil Procedure provides, viz.: “A party aggrieved may appeal in a case prescribed in this chapter, except where the judgment or order of which he complains was made upon his default.”

In as much as no issue of fact was raised by the answer, we think the complaint must be taken as true, in obedience to section 522, and we think, under section 1294, it must beheld that the appellant was in default, and it was the duty of the special term to accept as true the allegations of the-complaint which were admitted for the purposes of the action by the omission of the defendant to take issue in the modes prescribed by the Code for controverting the allegations of the complaint.

We think it has been settled by several adjudications that-an appellant is not entitled to prosecute an appeal where he is in default. The interlocutory judgment follows the allegations of the complaint, and the final judgment carries-forward the adjudications of the interlocutory judgment and completes the full adjudication of the rights of the-parties. Goldsmith v. Goldsmith, 11 Week. Dig., 551.

In that case it was said, viz.: ‘ ‘ Where the defendant appears and does not answer, but files exceptions to the-referee’s report, and is heard on the application for judgment, no appeal lies from the judgment entered, the same being regarded as a judgment by default under section 1294 •of the Code.” The same doctrine seems to be declared by the case of Flake v. Van Wagenen (54 N. Y , 27). It is insisted, on behalf of the appellant, that certain letters, passing from the respondent’s attorneys to the counsel for the appellant with respect to what papers should be printed to constitute the appeal book are sufficient to obviate the objection now made against the appeal. We think the position is unsound. Consent does not confer jurisdiction upon this court to hear an appeal. Our jurisdiction must be obtained by compliance with the provisions of law conferring appellate jurisdiction. Besides we find in the letters of the respondent no clear intention to waive any legal rights, or to confer any power upon an appellate court to review the questions involved. We are of the opinion the motion should be granted and appeal dismissed with costs.

Bo aroman and Follett, JJ., concur.  