This record presents a peculiar condition, .from which has resulted the entry of a final equity judgment, enjoining the defendant and for a sum of money, on affidavits, without an accounting or other trial or investigation. The relief demanded in the complaint was: “ (1) That the defendant be perpetually enjoined from assessing the plaintiff upon his aforesaid contracts at a rate in excess of two dollars and sixty-eight cents per one thousand dollars ($1,000), on a total indemnity of $1,000,000; (2) that the defendant render an accounting to the plaintiff of the sums of money received from the plaintiff in excess of said rate of $2.68 since the 15th day of January, 1900, with interest upon each successive payment since the date of said payment; and (3) that the plaintiff have judgment against the defendant for the sum so found to be due the plaintiff upon such accounting, and that the plaintiff have such other and further relief as may to the court seem just and equitable, besides the costs and disbursements of this action.” To that complaint the defendant interposed a demurrer, which was overruled at Special Term, and on appeal the interlocutory judgment was affirmed in this court (159 App. Div. 121). The defendant was allowed leave to withdraw the demurrer and to answer. Failing to serve an answer within the time allowed, defendant was, therefore, in default, and plaintiff was entitled to judgment for the relief prayed for in the complaint, i. e., an injunction and an accounting. The defendant being in default, the plaintiff moved for final judgment at Special Term on notice to defendant. The defendant did not *511appear on that motion, and the court, therefore, entered final judgment in favor of the plaintiff. But instead of entering the judgment which the plaintiff asked for, i. e., an injunction and an accounting, the court, upon affidavits and without the examination of any witnesses, seems to have itself taken the accounting and entered a final judgment against defendant for a sum of money.
This,was clearly irregular. The application for judgment was made under the Code of Civil Procedure. Section 1215 of the Code provides: “ The court, or a judge or justice thereof, must thereupon render the judgment to which the plaintiff is entitled. It, or they, may, without a jury, or with a jury if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it, or them, to render the judgment, or to carry it into effect; or it, or they, may, in its, or their, discretion, direct a reference, or a writ of inquiry, for either purpose; * * Section 1207 of the Code provides: “Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint.” Undoubtedly the court could have taken an accounting on this application by the plaintiff for judgment for the relief demanded in the complaint, the defendant not appearing to oppose it, or could have appointed a referee to take such an account. But receiving affidavits was not taking an account as demanded, and the judgment entered thereon seems to be clearly irregular.
The judgment was entered upon the defendant’s default. It recited: “ This case having been regularly brought before this Court on the plaintiff’s application for judgment, on due notice to the defendant’s attorney, and it appearing that the defendant has not answered the complaint herein within the time allowed therefor, after the defendant’s demurrer to the complaint had been overruled, and the Court having heard the evidence produced by the plaintiff in his behalf and no one appearing in opposition, and the court having made its findings of fact and conclusions of law, now, on motion of Hooker I. Coggeshall, the plaintiff’s attorney, it is Ordered, Adjudged and Decreed, First: That the defendant, Hartford Life Insurance Company, be and hereby is perpetually enjoined and *512restrained from assessing the plaintiff upon his contracts of insurance in said company, * * * at any rate in excess of the rate of $2.68 ‘ for every $1,000.00- of a total indemnity of $1,000,000.00 ’ as mentioned and provided for in said contracts. Second: That the plaintiff recover against the defendant Hartford Life Insurance Company the sum of Sixteen hundred and ninety-one dollars and thirty-four ($1,691.34) cents,” with the costs of the action. From that judgment the defendant appealed and included in its notice of appeal: " And the appellant intends to bring up for review upon such appeal the interlocutory judgment entered herein the 1th day of February, 1913, whereby it was adjudged that the defendant’s demurrer to the complaint herein be overruled with costs.” The defendant being in default, the plaintiff was entitled to judgment. The defendant having appeared, the notice of application for judgment was duly served, and the failure of the defendant to appear on that application made the judgment thereupon entered a judgment entered on default. Section 1294 of the Code provides: " 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.” This is the only authority that allows an appeal from a judgment, writ of error having been abolished by section 1293 of the Code of Civil Procedure. Therefore, the judgment being by default, no appeal could be taken.
I think if the defendant had appeared in the court below and opposed the application for judgment, it then could have appealed from that judgment and brought up for review the interlocutory judgment which this court had affirmed. Section 1316 of the Code of Civil Procedure, providing for the review of interlocutory judgments and intermediate orders, authorizes such an appeal. Of course, so far as the appeal to this court was concerned, this court having passed upon the interlocutory judgment on a former appeal, it would have been an appeal pro forma, but the defendant had the right to appeal to the Court of Appeals from the final judgment and, as the interlocutory judgment had not been reviewed by the Court of Appeals, the defendant had the right to appeal from the judg- ■ ment of this court to the Court of Appeals and to bring up *513for review in the Court of Appeals the interlocutory judgment upon which the final judgment was entered. If the defendant had wished to review the final or interlocutory judgment, it should have appeared in the application for judgment and not suffered a default, but inasmuch as it did not appear, it was in default. If it had wished to raise the question that the default final judgment for the plaintiff was more favorable than that demanded by the complaint and, therefore, in violation of section 1207 of the Code, it should have moved to vacate the judgment or to modify it to make it conform to the relief demanded in the complaint. On appeal from the order on such an application, this court could review the action of the Special Term, but as it stands there can be no appeal from the judgment entered on default, and the appeal must he dismissed.
The appeal should, therefore, be dismissed.
Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.