Opinion
January 9, 1976
Appeal from the Niagara Supreme Court.
Present — Marsh, P.J., Simons, Mahoney, Goldman and Witmer, JJ.
Appeal unanimously dismissed, with costs, in accordance with the following memorandum: No appeal lies from a judgment entered by default (CPLR 5511; 10 Carmody-Wait, 2d, §§ 70:25, 70:58), nor can such judgment be amended on appeal (Herpe v Herpe, 225 N.Y. 323, 327). Defendants' remedy, if any, is by motion to open the default and vacate the judgment. Were the appeal properly before us from an order denying a motion to open the default and vacate the judgment, we would affirm on the merits.