The defendant appeals from a judgment taken against him by default and also from an order denying his motion to open such default. No appeal will lie from a default judgment, and as to that the appeal must be dismissed. Liebling v. Brog, 113 N. Y. Supp. 549. The defendant’s sufficient statements, set forth in affidavits used on his motion to open, his default, are not contradicted; and it appears that, on the day set for trial, his attorney could not attend at the call of the calendar. It appears from the affidavit submitted by plaintiff’s attorney that, when the case was called for trial, the defendant still not answering, plaintiff moved to strike out the answer of defendant on the ground that it was frivolous, so that no testimony was taken. This motion was granted and judgment given on the plaintiff’s verified complaint in his favor, although the defendant had interposed a verified answer. This was error. There is no power given to the Municipal Court to strike out-pleadings as frivolous or to give judgment on the pleadings under section 547, Code of Civil Procedure. The chapter of the Code containing these provisions is applicable to courts of record only. Code Civ. Pro., § 3347, subd. 4. Neither aid the court below have power to impose ten dollars costs upon the denial of the motion to open the default. Klotz v. Frelich, 108 N. Y. Supp. 1023.
Appeal from judgment dismissed. Order denying motion to open default reversed, default opened and new trial ordered, with costs to appellant to abide the event.
Present: Gildersleeve, MacLean and Dayton, JJ.
Appeal dismissed. Order reversed, default opened and new trial ordered, with costs to appellant to abide event.