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Blackman v. Ironclad Mfg. Co.

122 N.Y.S. 619 Court N.Y. App. Div. Decision date 1910-04-22 English

Delivered by JENKS, J.

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p. 619
BLACKMAN v. IRONCLAD MFG. CO.
(Supreme Court, Appellate Division, Second Department.
April 22, 1910.)

Headnote

Courts (§ 189[1] )—Municipal. Courts—Vacating Default Judgment—Statutory Power.
Laws 1907, c. 304, so amending Municipal Court Act (Laws 1902, c. 580) § 253, as to authorize the court or a justice thereof to vacate a default judgment rendered without service of process, affects the remedy only, and is applicable to a default judgment rendered and motion made to vacate it prior to the passage of the act; and the court hearing such motion after the adoption of the act has power to grant it, though at the time of the rendition of the judgment and of the making of the motion the remedy was by appeal under section 311.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.[1] ]
Appeal from Municipal Court of New York.
Action by Morris Blackman against the Ironclad Manufacturing Company. From an order of the Municipal Court denying a motion to vacate a default judgment, defendant appeals.
Reversed.
Argued before JENKS, BURR, THOMAS, RICH, and CARR, JJ.
James, Schell & Elkus, for appellant.
Charles Burstein, for respondent.

The defendant appeals from an order of the Municipal Court that denied its motion to vacate a judgment entered against it by default.

The ground of the motion was jurisdictional, in that the defendant was not served with process, and that the alleged appearance in this action of its general attorney was a fraud, if not a forgery. The appellant would have us regard this appeal as from an order refusing to open its default. But the application for the order to show cause, that order, the avowed contention of counsel at the time of the application, and the order entered upon the motion, all indicate plainly that the remedy sought was vacation of the judgment. The judgment was entered in 1905, and but a few days intervened between the entry thereof and this application. The justice who presided in the court at the time the motion was made overlooked the motion, and did not decide it until December 31, 1909, when it was denied “for want of power.”

If this decision had been made prior to September 1, 1907, there was authority for it (Diehl v. Steele, 49 Misc. Rep. 456 , 97 N. Y. Supp. 1024 ), and the remedy of the defendant, as pointed out in that case, would have been found in section 311 of the Municipal Court act (Laws 1902, c. -580). But on September 1, 1907, section 253 was amended (Laws 1907, c. 304), so that at the time this decision was made the court or a justice thereof, in a district in which a judgment is taken without the service of k summons, or the process required by law, could have vacated the judgment, and have afforded the further appropriate relief. For this amendment but affected the remedy, and was therefore applicable to the case at bar when the court came to decide it. Matter of Davis, 149 N. Y. 539 , 44 N. E. 185 ; Southwick v.

p. 620
Southwick, 49 N. Y. 510 ; Ryan v. Waule, 63 N. Y. 57 ; Lazarus v. M. E. R. Co., 145 N. Y. 585 , 40 N. E. 240 ; Peace v. Wilson, 186 N. Y. 403 , 79 N. E. 329 .

The order is reversed, with $10 costs and disbursements,, and the motion is remitted to the Municipal Court for hearing upon the merits thereof. All concur.

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