Majority
p. 117ZIMMERMAN v. DUTCHESS COSTUME CO. (Supreme Court, Appellate Term. May 27, 1909.) Argued before DAYTON, SEABURY, and LEHMAN, JJ.
Headnote
1. Costs (§ 57[1] )—Grounds—Motion to Open Default.The Municipal Court of the City of New York has no power to Impose costs on denying a motion to open defendant’s default.
[Ed. Note.—For other cases, see Costs, Dee. Dig. § 57.[1] ]
2. Courts (§ 189[1] )—Inferior Jurisdiction—Municipal Courts—Procedure —Setting Aside Default.
It is an abuse of discretion for the Municipal Court of the City of New York to deny a motion to open defendant’s default, where it was shown that defendant was in attendance at the wrong part of the court, was willing to try the cause, was financially responsible, and set up a defense of payment.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Ike Zimmerman against the Dutchess Costume Company. From an order of the Municipal Court of the City of New York denying a motion to open defendant’s default, defendant appeals.
Reversed.
p. 118
Joseph B. Reilly, for appellant.
Henry M. Fertig, for respondent.
The court had no power to impose these costs. The excuse given for the default, to wit, attendance at the wrong part Of the court, the affidavit of merits, a willingness to try the cause, the financial responsibility of the defendant, and the defense of payment, all present sufficient reasons for granting the motion, and its denial was an abuse of discretion.
Order reversed, judgment vacated, default opened, and case set down for trial, with costs to appellant to abide the event.