
    Lansing v. Stevens.
    
      (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    Judgment—Rendition and Entry—Proof- of Case.
    Code Civil Proc. § 2891, relating to justices’ courts, provides that, “if a defendant fails to appear and answer, the plaintiff cannot recover without proving his case. ” Laws 1881, c. 414, g 3, provides that in certain cases, if the defendant fails to answer or demur to a sworn complaint, he shall be deemed to have admitted its allegations, and the court shall enter judgment for the amount demanded without further proof. Held, that the latter act does not repeal, but only modifies, the Code; and that, where defendant demurs, judgment cannot be entered without proof. Following Oulman v. Schmidt, 35 Hun, 345.
    Appeal from Albany county court.
    This action was brought by Peter J. Lansing against Samuel Stevens, impleaded, etc., in the city court of Albany, where he obtained judgment, which was affirmed by the county court. Defendant, Stevens, appeals. Oulman v. •Schmidt, 35 Hun, 345, referred to in the opinion, was an action commenced dn a justice’s court of King’s county by the service on the defendant of a summons and sworn complaint. The defendant demurred, the demurrer was ■overruled, and defendant failed to answer; whereupon the justice rendered judgment for plaintiff without requiring any proof of his claim. The county court affirmed the judgment. Code, § 2891, relating to justice’s courts, provides that, “if a defendant fails to appear and answer, the plaintiff cannot re,cover without proving his ease.” By chapter 414, Laws’ 1881, the plaintiff may make a written complaint, verify it, and have it served on the defendant'. Section 3 provides that, if the defendant fails to answer or demur to such complaint, he shall be deemed to have admitted the allegations of the complaint as true, and the court shall, upon proof of service thereof, enter judgment for the plaintiff for the amount demanded, without further proof. On appeal to the general term, the court (Pratt, J.) said: “Section 2891 of the Code is not repealed by the act of 1881, and must be read in connection with section 3 of the act above quoted, and such construction given to them .that both may stand if that be possible. Under the Code, the plaintiff could not take judgment in any case without proving his case. This rule is now so far modified that in certain actions, if a sworn complaint is served upon the defendant, the plaintiff may take judgment without further proof, provided the defendant fails to answer or demur; but if he does either, then the ease is governed by the Code, and the plaintiff must prove his claim.” The court accordingly reversed the judgment, on the ground that, a demurrer having .been interposed, the plaintiff was bound to prove his case.
    
      Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      George U. Steoens, for appellant. Eugene Burlingame, for respondent. -
   Ingalls, J.

The precise question which is presented upon this appeal has-been decided by the general term of the Second district, (Oulman v. Schmidt, 35 Hun, 345.) The decision was placed upon that ground, although there-was another fatal defect in the proceedings in that case, which was considered, as appears by the opinion. * That case was cited as authority in Thames-v. Jones, 4*7 Hun, 81. We think the case of Oulman v. Schmidt, supra, should be followed by this court. The judgment of the county court, and of', ■the city court of Albany, should be reversed, with costs.

Learned, P. J., and Landon, J., concur.  