
    
      Isaac Spiero, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    A party by appealing from a judgment necessarily concedes that he was properly served with process, or duly appeared, in the action, and cannot claim that he was improperly, made a party.
    An appeal lies from a .judgment entered upon a default in a District Court, , x
    . Appeal by the defendant from a judgment of the District Court in the city of N"ew York for the first judicial district, , rendered upon a trial had before the justice thereof without a jury. ■
    The nature of the action and the material facts are stated in the opinion.
    
      
      Henry A. Pobi/nson (John T. Little, of counsel), for appellant.
    
      Louis Oohen, for respondent.
   - Gtiegebíoh, J.

This action was brought for damages to the. plaintiff’s horse and truck, caused by a collision with a cable car. The summons was entitled against the Broadway & Seventh Avenue Railroad Company, but was served upon one Hasbrouck, the vice-president of the Metropolitan Street Railway Company. The Broadway Company appeared, however,, upon the return day and filed a verified answer. It also-cross-examined the plaintiff’s witnesses and otherwise tqok part, in the proceedings at the trial, and, after1 the plaintiff had rested, put in evidence that the Metropolitan Company operated the road on which the accident occurred at the time of the accident. The justice then allowed the plaintiff to amend by inserting the name of the Metropolitan Company as defendant, .and offered an adjournment if surprise was pleaded, and,, upon motion of the Broadway Company, an adjournment was, granted. ...

Upon the adjourned day the complaint was dismissed as to-the Broadway Company, and, the Metropolitan Company failing to appear, the judgment was rendered against it, from which this appeal is taken.

The appellant urges that it was not properly brought in> as a party defendant. But this claim is inconsistent with the position it has assumed as an appellant.

Section 3045 of the Code of Civil Procedure, which is made applicable to appeals from District Courts to this court by section 1438 of the Consolidation Act, and section 3213 of the-Code of Civil Procedure, provides that an appeal may betaken by any party aggrieved by the judgment. By undertaking to appeal the defendant necessarily concedes, that it. was properly served with process, or duly' appeared in the-action; otherwise it would be a stranger to the action and without standing to appeal (Tracy v. Bank, 37 N. Y. 523; People v. Lynch, 54 id. 681; Watson v. Nelson, 69 id. 536; Martin v. Kanouse, 2 Abb. Pr. 390; E. B. v. E. C. B., 28 Barb. 299), and the coxirt, under the above provision of section 3045, would be without jurisdiction to entertain the ap>peal.

We see no way, therefore, of treating this appeal except as one from a judgment entered by default. The respondent’s contention that no appeal lies from such a judgment is mistaken, so far as concerns appeals from District Coiu’ts to this court (Hurry v. Coffin, 11 Daly, 180, and cases cited), and if the plaintiff’s proof of his claim had been insufficient a reversal should result. Hurry v. Coffin, supra. But the evidence adduced upon the tidal established prima facie a cause of action for the amount recovered.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.

' Judgment affirmed, with costs.  