Applebaum v. Bonagur — 107 N.Y.S. 635

Majority

p. 635

(56 Misc. Rep. 615.)

APPLEBAUM v. BONAGUR.

(Supreme Court, Appellate Term.

December 12, 1907.)

Headnote

1. Courts—Municipal Courts—Setting Aside Verdict—Extending Time of Motion.

The time 'limited by Municipal Court Act, Laws 1902, p. 1563, c. 580, §’ 254, for a motion to set aside a verdict or vacate a judgment, cannot be extended under the guise of a motion for a reargument.

2. Appeal—Right Lost by Accepting Costs.

Receiving and retaining by plaintiff’s counsel of the costs imposed by the order setting aside a verdict preclude appeal from the order.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 991.]

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

Action by Harry Applebaum against Vincent Bonagur. From an order setting aside a verdict, plaintiff appeals. Dismissed.

Argued before GILDERSLEEVE, P. J., and GUY and BRUCE, JJ.

Robert Loudon, for appellant.

Menken Bros., for respondent.

The plaintiff herein appeals from an order vacating a judgment and setting aside the verdict of a jury. The case was tried and a verdict rendered in favor of the plaintiff on April 24, 1907. The defendant thereupon made a motion to set aside the verdict, which motion was denied. Subsequently, and on May 2; 1907, the defendant made a motion for a reargument of the motion theretofore made to set aside the verdict, and the court granted said motion, and on May 7, 1907, an order was entered setting aside the verdict and vacating the judgment, and the case was set down for trial on May 22, 1907, upon payment of the sum of $10 costs to the plaintiff within 10 days.

Upon the hearing of the motion for reargument, the plaintiff urged that more than 5 days had elapsed after the rendition of the judgment, and that under section 254 of the Municipal Court act (Laws 1902> p. 1563, c. 580) the motion could not be entertained. In this position the plaintiff was undoubtedly correct. The defendant could not, under the guisé of a motion for a reargument, extend the limitation prescribed by section 254, supra, in which a motion to set aside the verdict of a jury or vacate a judgment must be made, and the order herein would have to be reversed, were it not that it is conceded that the plaintiff’s attorney received, accepted, and retained the $10 costs imposed by the terms of the order setting aside the verdict, and is thereby precluded from bringing this appeal. Logeling v. N. Y. El. R. R. Co., 5 App. Div. 198 , 38 N. Y. Supp. 1112 ; Platz v. City of Cohoes, 8 Abb. N. C. 393 .

Appeal dismissed, with $10 costs.