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Clement v. White's Express Co.

120 N.Y.S. 752 Court N.Y. App. Term Decision date 1910-01-21 English

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p. 752
CLEMENT v. WHITE’S EXPRESS CO.
(Supreme Court, Appellate Term.
January 21, 1910.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Opening Default—Conditions.
Under Municipal Court Act (Laws 1902, p. 1563, c. 580) § 256, authorizing the court to require as a condition for opening a default that defendant deposit the amount of the judgment or give a sufficient undertaking, the court, opening a default, may require defendant to deposit the amount of the judgment in court, and need not permit him to either make the deposit or file an undertaking.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Henry Clement against the White’s Express Company. From a default judgment, and from an order opening the default, defendant appeals.
Affirmed.
Argued before GIEGERICH, DAYTON, and LEHMAN. JJ.
Jacob W. .Block, for appellant.
Burnham Kalisch, for respondent.

Appeal from judgment by default and from an order opening that default. Several features of this discussion have been disposed of at the October, 1909, Appellate Term.

Appellant now contends that the Municipal Court is without authority to compel defendant to deposit the amount of the judgment in court, and that defendant should have the “discretion” either to deposit the amount or to file a proper undertaking. The express language of section 256, Municipal Court Act, gives to that court the power, as a condition for opening any default, to order any defendant in default to deposit the amount of the judgment, or to give a sufficient undertaking. This is so clear as to preclude discussion.

Order affirmed, with costs.