Guttenberg v. Taibbi — 123 N.Y.S. 1

Majority

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(67 Misc. Rep. 426.)

GUTTENBERG v. TAIBBI et al.

(Supreme Court, Appellate Term.

May 24, 1910.)

Headnote

1. Courts (§ 190^[1] )—Municipal Courts—Opening Default—Appeal.

A Municipal Court order, vacating an order opening a default and restoring the case to the calendar, was in effect a denial of the motion to open the default, and therefore appealable to the Appellate Term. .

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]

2. Judgment (§ 138*)—Default—Vacation.

Where an inquest was improperly taken on a default judgment which should not have been entered, an order opening the default .and restoring the case to the calendar was proper.

LEd. Note.—For other cases, see Judgment, Dec. Dig. § 138.*] .

3. Courts (§ 189*)—Municipal Courts—Co-Ordinate Jurisdiction. .

Where a Municipal Court opened a default and granted defendant’s motion to restore the cause to the calendar, another justice of. the same court, having co-ordinate jurisdiction, should not have vacated the order of his associate. ... *

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]

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

Action by Jacob Guttenberg against Carlo Taibbi and another. From a Municipal Court order, vacating an order setting aside an order opening defendants’ default, they appeal.

Revered.

Argued before SEABURY, LEHMAN, and PAGE, JJ.

Samuel S. Breslin, for appellants.

Stacked & Louis, for respondent.

It is unnecessary to review all of the numerous motions which were made in this action. For the purpose of determining the present appeal, it is necessary only to refer to the following facts:

Upon an inquest, which was improperly taken, judgment for $500 was entered against the defendants in favor of the plaintiff. The defendants moved to open their default, and this motion was granted, and the cause was restored to the calendar. Subsequently, upon motion of the plaintiff, another justice of the Municipal - Court vacated the or

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der opening the default and restoring the cause to the calendar. The effect of this order was, in substance, a denial of a motion to open a default, and as such is properly the subject of an appeal to this court.

The original default should not have been taken under the circumstances disclosed by the record. The order opening the default and restoring the cause to the calendar was a proper order. The order subsequently made by another justice, vacating this order, was an unwarranted interference with the order of his associate.

It follows that this order should be reversed, and the plaintiff should be permitted to have his day in court.

Order reversed, with costs. All concur.