Hinds v. Calamaras — 107 N.Y.S. 28

Majority

p. 28

HINDS v. CALAMARAS et al.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Courts—Municipal Courts of New York City—Procedure—Opening Default-Authority of Court.

Under the express provisions of Municipal Court Act, § 253, the Municipal Court of the city of New York has power ito open the default of the defendant in failing to appear on the return day of the summons.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by William A. Hinds against Nathan Calamaras and others. Erom an order refusing to open default, defendants appeal. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

J. Quintus Cohen, for appellants.

The court below refused an application to open the default of the defendants herein in failing to appear upon the return day of the summons, alleging in its order want of power so to do. This was clearly error. Although the notice of motion, in addition to asking for the opening of the defendants’ default, asked also for the restitution of the money paid under protest by them to the marshal upon an execution theretofore issued upon the judgment, nevertheless, if we assume, without deciding, that the court below had no power to order restitution, it had ample power to open the default and set the cause down for trial. Section 253, Mun. Ct. Act (Laws 1902, p. 1562, c. 580). The moving papers presented good and sufficient reasons for excusing the defendants’ default, and nothing was shown in opposition thereto upon the hearing of the motion.

Order reversed, and new trial ordered, with costs to appellants to abide the event.