Klotz v. Frolich — 108 N.Y.S. 1023

Majority

p. 1023

KLOTZ v. FROLICH.

(Supreme Court, Appellate Term.

February, 1908.)

Headnote

Courts—Municipal Courts—Judgment—Refusal to Open Default—Payment of Costs.

The Municipal Court of the City of New York has no power to award costs on the denial of a motion to open a default judgment; Municipal Court Act, Laws 1902, p. 1563, c. 580, § 256, only providing for the award of costs on the opening of a default judgment. •

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

Action by Morris Klotz against Max Frolich. From an order denying a motion to open a default judgment rendered against plaintiff, and to vacate a judgment entered in defendant’s favor, plaintiff appeals. Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and BISCHOFF, and MACLEAN, JJ.

p. 1024

Herman Gettner, for appellant.

Henry H. Silver, for respondent.

The plaintiff, appearing by one Bernhard Hess, brought an action upon a check of the defendant, who answered with a general denial and a counterclaim for $50. The summons was returnable April 17, 1907, when the trial was set for the 18th. On that day the case was marked “Ready on both sides,” though the clerk and afterwards the court suggested that it could not be reached. Plaintiff’s counsel insisted day by day upon the case being marked “Ready,” until April 26th, when, he not appearing, the defendant had his complaint dismissed, and upon an inquest took judgment for the counterclaim of $50. A transcript of the judgment was filed in the office of the county clerk; and thereafter the defendant’s judgment was collected through an attachment upon funds in the Jefferson Bank. Some months afterwards, November 1, 1907, the defendant was served with a summons in the Fourth District Court in an action brought upon the same check by one Samuel Tomberg, for whom the same attorney, Bernhard Hess, appeared, in which action on the trial the plaintiff therein, Tomberg, swore the check had been indorsed to him by Klotz. That action was dismissed. About a month later the motion to open the default, involved upon this appeal, was made by the plaintiff’s present attorney, who presented an affidavit with much detail, which was replied to by an affidavit also in detail. The situation with all its circumstances being thus presented at length to the learned justice, he, in discreet exercise of his discretion, denied the motion to open the default, but inadvertently with $10 costs, which allowance, not being provided for in Municipal Court Act, Laws 1902, p. 1563, c. 580, § 256, should be stricken from the order upon which comes this appeal.

Order appealed from modified, by striking out the words “with $10 costs,” and, as modified, affirmed, without costs on this appeal.