Opinion
July, 1904.
George A. Stearns, for the appellant.
B.W.B. Brown, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, McLAUGHLIN and HATCH, JJ.
This action was brought to recover a judgment of divorce. Certain issues were tried before a jury and thereafter the cause was placed upon the Special Term calendar, Part 3, for trial.
At the trial the defendant did not appear and thereupon the plaintiff's counsel moved, upon the summons, complaint, notice of appearance and answer of the defendant, the order directing the trial by jury of the issues, the verdict of the jury and the minutes of the clerk of the part where the jury trial had taken place for an interlocutory judgment. The motion was granted, notwithstanding the fact that no notice of such application had been given (Code Civ. Proc. § 1225; Gen. Rules Pr. rule 37) and that plaintiff under rule 76 of the General Rules of Practice was not entitled to a judgment by reason of defendant's default. The defendant's attorney thereafter obtained an order to show cause why the interlocutory judgment should not be vacated upon the ground, among others, that notice of the application for judgment was not served upon him. Upon the return of the order to show cause the application to vacate was denied and the defendant has appealed.
We think this order should be reversed. Under the facts set out in the moving papers, none of which are denied, the defendant's attorney was entitled to notice of the application for judgment, and such notice not having been given, the judgment should have been vacated.
It does not appear that any decision was ever made, and if this be true, that is also fatal to the judgment. ( Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254; Hall v. Beston, 13 id. 116; McManus v. Palmer, Id. 443.)
The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.