Opinion
December 13, 1912.
George E. Brower, for the appellants.
Hugo Hirsh, for the respondents.
There are eight actions for the foreclosure of as many different mortgages, all of which were made and delivered at the same time to the United States Title Guaranty and Indemnity Company and by the latter assigned to the plaintiffs in these actions, each holding four of the mortgages. The appealing defendants did not answer, and on the 21st day of October, 1911, the plaintiffs moved to amend their complaint by making some minor changes in the allegations of fact and asking for leave to amend by adding an allegation that the plaintiff postponed bringing an action to foreclose said mortgage, relying upon the agreement of the defendants Audley Clarke, William L. Newton, Charles E. Robertson and Edwin M. Houghtaling, trustees, that the rents would be applied toward the payment of taxes on the property and interest on the mortgage held by the plaintiff, and, by changing the prayer for relief, to compel the defendants to turn over these rents toward the discharge of any deficiency which might result from the sale of the premises. The appellants appeared on the return of this motion and opposed it, at the same time denying the allegations of the proposed amendments. As a result of this motion an order was entered in the following language: "The defendants acquiesce in the amendments save and except to the amendments to the pleading permitting plaintiff to set up another cause of action against the defendants Albro J. Newton, Charles E. Robertson, Audley Clarke and Edwin M. Houghtaling. Permission to amend in this regard is refused and the other amendments allowed under consent of counsel."
The language of this order is not a denial of the plaintiff's motion to make the above-mentioned persons as trustees parties to the action; it simply denies the plaintiff the right to "set up another cause of action against the defendants" named as individuals, and permits the other amendments, and the amendments requested by the plaintiff in part involved an amendment alleging the delaying in bringing the action in foreclosure upon the promise of these defendants as trustees to do certain things, and their refusal to perform. The order, at least, is ambiguous; it does not point out clearly in what respect the plaintiff is to be permitted to amend the complaint. Subsequently, on motion of the respective plaintiffs, notice being given to the attorney of the defendants, an order was entered resettling the original order, in which it was "Ordered, that the plaintiff herein have leave to amend the summons, complaint, and notice of pendency of action and other papers herein." The defendants did not appear upon the motion for the resettlement of the order, and subsequently received and retained the amended papers in the action, without making any suggestion that there was a defense of any kind to the cause of action thus set forth. In other words, the defendants now before this court, though having notice of the proposed resettlement of the order, did not appear, and they subsequently received the amended complaint and failed to put in an answer within the time limited, and the case proceeded to judgment by default in so far as they are concerned.
With the record in this condition it is obvious that the defendants could not appeal from the judgment, nor yet from the order resettling the original order, for as a general rule the right to appeal is purely statutory, and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must be taken within the time and by the mode prescribed ( Garczynski v. Russell, 75 Hun, 512, 515), and section 1294 of the Code of Civil Procedure provides that "A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default." (See Stern v. Marcuse, 128 App. Div. 169, 170.) Not being permitted to appeal from the order as finally made, or from the judgment, by reason of the default in appearing and pleading, are the defendants in a better position upon an application to set aside the judgment, or for a modification of the same; may they be permitted to accomplish by indirection what they would not be permitted to do directly, by means of an appeal from an order denying a motion to set aside a judgment which has been entered by default as against them? We think not. The judgment having been entered by consent of the defendants — for so the record shows them — they are not deemed in law to have sustained an injury ( Stern v. Marcuse, supra), and if they are not aggrieved by the judgment, then they are not aggrieved by an order denying a motion to set it aside or to modify it, and it is only a party aggrieved who may appeal. There is opportunity under sections 724 and 783 of the Code of Civil Procedure to open the default in pleading upon proper papers, but so long as the judgment stands by default, there is no remedy by appeal to this court.
The appeal should be dismissed, with ten dollars costs and disbursements.
JENKS, P.J., THOMAS, CARR and RICH, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.