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Lasker v. Guterman

115 N.Y.S. 114 Court N.Y. App. Term Decision date 1909-03-05 English

Delivered by MacLEAN, J.

Contents

Majority

p. 114
LASKER v. GUTERMAN.
(Supreme Court, Appellate Term.
March 5, 1909.)

Headnote

1. Courts (§ 189[1] )—Municipal' Court—Vacating "Judgment and Dismissing Action.
An order of the Municipal Court, not only vacating and setting aside a judgment, but dismissing the action, is void as exceeding the court's jurisdiction, under Municipal Court Act (Laws 1902, p. 1562, c. 580) § 253. [Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
2. Courts (§ 190*)—Appealable Order.
An order of the Municipal Court vacating and setting aside a judgment dismissing the action, void because exceeding the court’s jurisdiction, under Municipal Court Act (Laws 1902, p. 1562, c. 580) § 253, is not appealable.
[Ed. Note.—For other cases, see Courts, Dec. Dig. §190.*]
Appeal frohi Municipal Court, Borough of Manhattan, First District. - -
: Action by Benjamin Lasker against Louis H. Guterman; From an order in favor of defendant, plaintiff appeals. Dismissed.
p. 115
Argued before GILDERSLEEVE, P. J,, and MacLEAN and" DAYTON, JJ. • -
Schenkman & Brown, for appellant.
Maurice M. Greenstein, for respondent. .

The plaintiff appeals from an order of the court below “vacating and setting aside the judgment herein and dismissing the above-entitled action.” The order is void, and is not appealable. The court exceeded its jurisdictional powers. “The Appellate Term has frequently decided that the construction to be given section 253 Municipal Court Act (Laws 1902, p. 1562, c. 580), is .not that it gives the court power to vacate and set aside a judgment and dismiss the action, but that a judgment can only be vacated when a default is opened, and the order opening the default must contain a provision setting the case down for pleading,, hearing, or trial.” Friedberger v. Stulpnagel, 59 Misc. Rep. 498 , 112 N. Y. Supp. 89 , 92., In the same case ( 59 Misc. Rep. 498 , 112 N. Y. Supp., at page 95) are suggested two remedies for a defendant over whom the court had. acquired no jurisdiction, viz., an appeal from the judgment under section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580), or an application to the court below under section 253. The appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.

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