
    POPE a. DINSMORE.
    
      Supreme Court, First District; General Term,
    
      May, 1859.
    Appeal.'—Judgment by Default.
    A defendant who does not appear on the trial in the court below, cannot appeal from, the judgment rendered against him.
    
    The defendant’s remedy is to move upon excuse, to have the default opened.
    The objection that the complaint does not state facts sufficient to constitute a cause of action, if not presented by demurrer, must be raised at the special term or circuit before it can be available on appeal.
    Whether the defendant might succeed in a motion to set aside a judgment by default, on the ground of such defect,—Query ?
    
    Motion to dismiss appeal.
    The facts are stated in the opinion.
    
      
       In the case of Stewart a. Morton (New York Superior Court; General Term, May, 1859), the same point was decided.
      In that case the plaintiff obtained a judgment on failure to answer. The defendant served a notice of appeal from the judgment, and the plaintiff moved to dismiss the appeal.
      
        Robert Gillen, for the motion, urged that under the provisions of the Code relative to appeals, an appeal could only be taken from a judgment entered upon the report of referees, or the direction of a single judge, or when the trial was by the court or referees. (Code, §§325, 348.) That there was a different remedy provided in case of a judgment entered, on failure to answer, viz.: by motion addressed to large discretion vested in the court to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. (Code, § 174.) But no appeal could be taken from a judgment by default. This was a judgment taken against defendant by reason of Ms omission or neglect; not one entered upon any decision of any referee, judge, or court.
      
        Selah Squires, opposed, contended that defendant had a right to bring up, by appeal, the objection that the complaint did not state facts sufficient to constitute a cause of action.
      
        Held, that the motion should be granted, with ten dollars costs. Ho written opinion was delivered.
    
   By the Court.—Pratt, J.

The defendants in this ease declined to appear upon the trial, and have appealed to the general term, from the judgment without a case or exceptions, and the motion now is made on the part of the plaintiffs to dismiss the appeal. I am of opinion that the appeal should he dismissed.

It is claimed on the part of the defendants that an objection to the sufficiency of the complaint may be taken for the first time upon appeal. If that be so, the appeal cannot be dismissed ; but if the complaint be sufficient, the judgment should be affirmed. It is true that when the complaint does not state facts sufficient to constitute a cause of action, the objection need not necessarily be made by demurrer. But the question, in my opinion, should in some form be raised and passed upon at special term or circuit, before the party objecting should be allowed to appeal.

Under the Code, the appeal to the general term seems to be provided for the revision of actual determinations of the court at circuit and special term. By section 268 of the Code, it is provided, in trials by the court without a jury, that “ for the purposes of an appeal, either party may except to a decision on a matter of law arising upon the trial, within ten days after notice in writing of the judgment.” It is then in the same section provided, when questions of fact or of law upon the evidence are desired to be reviewed by either party, that a case may be made ; and the section then contains this restriction—that the questions, whether of fact or of law, shall only be reviewed in the manner prescribed by that section. Bow, it was clearly competent for the defendants to take upon the trial an objection to the sufficiency of the complaint, and an exception to the ruling of the judge if adverse to them. But to allow them to reserve an objection of this character to be made for the first time upon appeal would be liable, I think, to great abuse, and contravene the manifest intention of the Code. If the defendants by any accident or misfortune have been prevented from appearing at the trial, they should move to have their default opened, or, perhaps, they might succeed in a motion to set aside the judgment on the ground that the record does not show a valid recovery. But they should, I think, be required to bring the question in some form before the court at special term, in order to entitle them to appeal to the general term from the judgment.

And this has been substantially passed upon by the Court of Appeals in Hunt a. Bloomer (3 Kern., 343), and Johnson a. Whitlock (Ib., 344). Those were cases of motions to dismiss appeals from judgment at general term, on the ground that no exceptions had been taken at the trial, and no case had been made or settled, and the motions were granted by the court. Now, if a party has the right to appeal upon the record alone, when no exception has been taken, and may, upon such appeal, take an objection to the sufficiency of the complaint, it was clearly improper in those cases to dismiss the appeals. The court should have examined the record, and if there was found no defect in the pleadings, have affirmed the judgment. These cases, therefore, may be deemed to overrule the cases in this court, cited upon the argument on behalf of the appellants.

Appeal dismissed, with costs.  