The defendant was served with summons on July 3, 1906, returnable July 11, 1906. On the return day both parties appeared by counsel. The pleadings were oral. The case wds by consent adjourned to July 24, 1906. *116On July twenty-fourth by stipulation the case was again adjourned to July 31, 1906. It was further by stipulation adjourned to August 7, 1906. In consideration of the last adjournment defendant’s attorney stipulated in writing to ask for no further adjournments. On August seventh both parties appeared in court. Defendant’s attorney, in violation of his stipulation, applied to the court for an adjournment stating that, under the rules of the court, cases of this kind were not to he tried before September. The court denied this application. An inquest was taken. Plaintiff was called and examined and the court gave judgment in his favor for $37.89, being the amount . claimed with interest and costs. Defendant appeals from the judgment and from the order denying his motion for an adjournment. The order is not appealable (White v. Lawyers’ Surety Co., 84 N. Y. Supp. 247), and the appeal from the judgment must he dismissed for the reason that it was taken upon a default and a motion to open such default must be first made. Kerr v. Walter, 104 App. Div. 45.
Present: Gildebsleeve, Fitzgebald and Davis, JJ.
Appeal dismissed with costs.