Rogers v. Walsh — 129 A.D. 506

Majority

p. 506

In the Matter of the Application of John J. A. Rogers, Appellant, for a Writ of Mandamus against Honorable John J. Walsh, as a Justice of the Municipal Court of the City of New York, Borough of Brooklyn, and John W. Carpenter, as Clerk of the Third District Municipal Court of the City of New York in the Borough of Brooklyn, Respondents.

Second Department,

December 30, 1908.

Headnote

Court—Municipal Court of Mew York — mandamus to compel entry of judgment — reserved motion undetermined.

Section 230 of the Municipal Court Act, governing the time within which judgment must be entered after the submission of a case, applies to judgments only, not to motions.

Where a justice of said court granted the defendant’s motion for a new trial conditioned on the payment of costs, and the plaintiff subsequently moved for judgment absolute upon the ground that the costs had not been paid, which claim was contested, and the decision of the motion was reserved, mandamus does not lie to compel the entry of a judgment in the plaintiff’s favor, although more than fourteen days have elapsed, for the question as to whether the defendant had complied with the condition is still undetermined,

p. 507

Appeal,by the relator, John J. A. Rogers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1908.

Paul V. O'Neil, for the appellant.

Dykman, Oeland & Kuhn, for the respondent Walsh.

This is an appeal from an order of the Special Term denying a motion by a plaintiff that a peremptory writ of mandamus issue to a justice and a clerk of the Municipal Court to enter a judgment in favor of the plaintiff. The said plaintiff in an action in the Municipal Court against one Mary Gavigan gained a verdict after trial before that justice and a jury, but the court granted a motion for a new trial made by the defendant upon her payment of the taxable costs and set the cause down for trial on a certain day. On the day set for trial the plaintiff stated to another justice who was presiding at that time that the defendant had not paid the costs and moved for judgment absolute. The court referred the matter to the justice who had granted the motion for a new trial. On December 20, 1907, the court presided over by that justice heard the application, which was contested, and reserved its decision. It had not rendered any decision on January 22, 1908, when the plaintiff renewed his motion, which was heard and decision thereon was reserved. No decision had been made on March 16, 1908, when this plaintiff moved for the said writ. The learned Special Term denied the motion on the ground that there was an order in the case setting aside the verdict on payment of the taxable costs, and the question whether the condition thereof was duly complied with had not been determined by the Municipal Court.

I think that the learned Special Term was right. The plaintiff himself shows that this motion for judgment on the ground of noncompliance with the order granting a new trial is before the Municipal Court under a decision reserved and not yet rendered. In Collins v. Lamson Consol. Store Service Co. ( 85 N. Y. Supp. 1110 ) the Appellate Term, Freedman, P. J., Gildersleeve and Greenbaum, JJ., held that section 230 of the Municipal Court Act refers

p. 508

only to the time in which a judgment must be rendered and has no reference to motions. I think that-this decision was correct. The Municipal Court had the power to grant a new trial. (Mun. Ct. Act, § 254; Id. § 1, subd. 19.) Whether or not the defendant had complied with the conditions of the order granting a new trial was a question for a judicial determination.

The order should be affirmed, but without costs.

Woodward, Hooker, Gaynor and Miller, JJ., concurred. ■

Order affirmed, without costs.