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2 E.D. Smith 39

Alburtis v. McCready

New York Court of Common Pleas

Decided April 15, 1851

New York Court of Common Pleas · decided 1851-04-15

The defendants in this cause, on the return of a summons issued against them from the Marine Court, attended and answered the complaint. An adjournment was taken, and on the adjourned day the plaintiff produced his testimony and took judgment. After he and his witnesses had left the court, the defendants appeared and asked that the case might be opened and the evidence in support of his defence received. This was refused by the justice. ■ An appeal was taken to this court.

Cited by 1 later decisions — most recently July 1882

1 state decisions

Relies on Pickert v. Dexter

Good law ✅— No negative treatment on recordhow we know

Decided 1851-04-15

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By the Court. Woodruff, J.

¶1The justice was right in refusing to set aside the judgment and allow the defendants to defend, &c. Such an order would have been the granting of a new trial, which the Marine Court has-no power to grant, (a)Had the application been made before the plaintiff and his witnesses left court, it would have been proper to allow the defendant to give proofs, but after judgment was pronounced and the plaintiff had left, it was too late. (Pickert v. Dexter, 12 Wend. 153, and cases cited.) The provisions of the Code referred to by the counsel for the appellant, which he supposes authorized the court to grant the relief he sought, do not apply to the Marine Court.

¶2But the judgment must be reversed, because there was no sufficient evidence to support it.

¶3Although the defendants did not appear at the trial, their non-appearance did not dispense with proof on the part of the plaintiff, of every fact essential to a recovery. They had answered, and there were issues to be tried; the non-appearance of the defendants was no waiver of the answer, nor confession of the cause of action.

¶4We would sustain a judgment in such case upon very slight evidence, but here we think the judgment wholly unwarranted.

¶5The judgment must be reversed. Had we any discretion on the subject, we should not give costs, but the statute has placed that question beyond our control.

¶6Judgment reversed.

¶7 By an act since passed, (Laws of 1853, p. 1,166, § 5,) a justice of the Marine Court may open defaults, and a general term of that court has been authorized, to which an appeal may be brought from a judgment directed by a single justice.

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