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Eichner v. Metropolitan Street Railway Co.

114 A.D. 247 Court First Department, Decision date 1906-06-25 English

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p. 247
Ettie Eichner, Appellant, v. Metropolitan Street Railway Company, Respondent.
First Department,
June 25, 1906.

Headnote

Practice —motion, to set aside judgment one year after entry — moving affidavit insufficient.
The Code of Civil Procedure provides that a motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll, and a motion to sot aside such judgment on the ground of the misconduct of a juror after the expiration of one year, must be made upon clear proof in order to avoid the effects of the statute.
When the moviug affidavit is wholly upon information and belief and does not disclose the sources of information nor the grounds of belief, it is insufficient.
Appeal by the plaintiff, Ettie Eiclmev, from an order of the Supreme Court, made at the Yew York Special Term, and entered in the office of the clerk of the county of Yew York on the 1st day of May, 1906, denying the plaintiff’s motion to vacate a former j udgment herein.
Frank M. Hardenbrook, for the appellant.
Marvin W. Wynne [Bayard H. Ames and Anthony J. Ernest with him on the brief], for the respondent.

The ease was tried on the 12th and 13th days of May, 1904, and resulted in a verdict in favor of the defendant, on which verdict a judgment was entered on the 19tli day of July, 1904. The

p. 248
motion for an order vacating the judgment and setting aside the verdict and granting a new trial upon the ground of misconduct of a juror was made on the 20th day of March, 1906. Section 1282 of the Code of Civil Procedure provides that “ a motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment-roll.” To avoid the effect of this statute, a clear case, based upon sufficient evidence of fraud, must be made out. The moving affidavit is made by the plaintiff and is solely upon information and belief, without stating the sources of the information or the ground of the belief. In Matter of Peck v. Cargill ( 167 N. Y. 391 ) the court held that “a petition in which all the material facts are stated upon information and'belief, without disclosing the sources of the information or the grounds of the belief, is no sufficient basis for any judicial action.” (Citing Murphy v. Jack, 142 N. Y. 215 ; Buell v. Van Camp, 119 id. 160 ; Campbell v. Morrison, 7 Paige, 157; Cushing v. Rusiander, 49 Hun, 19 .) This rule has been applied on motions to- vacate attachments for insufficiency of the moving papers (Yates v. North, 44 N. Y. 274 ; Steuben County Bank v. Alberger, 78 id. 258; Hunt v. Robinson, 52 App. Div. 539 ); to affidavits of service by mail in an action for foreclosure (Mowry v. Sanborn, 65 N. Y. 581 ); in motions for an injunction (Rome, Watertown & O. T. R. R. Co. v. City of Rochester, 46 Hun, 149 , where the court said: “ Such an affidavit proves nothing and does not call upon or aid the court in- determining any fact necessary to be determined in order to administer relief in any given case; ” Matter of Wheaton v. Slattery, 96 App. Div. 108 ; Cupples Envelope Co. v. Lackner, 99 id. 235 ); and on orders of arrest (McKelvey v. Marsh, 63 App. Div. 396 ; Price v. Levy, 93 id. 274). As the papers, under the decisions above cited, presented no facts upon which the court at Special Term could act, the order appealed from was clearly right and should be affirmed, with ten dollars costs and disbursements.

Present — O’Brien, P. J., Patterson, MoLaugiilin, Laugiilin and Clarice, JJ.

Order affirmed, with costs, Order filed.

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