Harris v. Mosolevsky — 123 N.Y.S. 56

Majority

p. 56

HARRIS et al. v. MOSOLEVSKY.

(Supreme Court, Appellate Term.

May 17, 1910.)

Headnote

Courts (§ 189^[1] )—Municipal Courts—Default Judgment—Vacation.

The court, on appeal from the Municipal Court, will vacate a default judgment, where the undisputed proof in the record shows that defendant’s counsel was actually engaged in a court of record when the case was called for trial.

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

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

p. 57

Action by Samuel Harris and another, trading as the Pacific Woolen Company, against Meyer Mosolevslcy. From an order denying a motion to open a default judgment entered against defendant, he appeals.

Reversed, and new trial ordered.

Argued before SEABURY, GUY, and BIJUR, JJ.

Samuel S. Breslin, for appellant.

Samuel Rosenberg, for respondents.

Judgment by default has been entered against the defendant, although at the time the case was called for trial the undisputed proof showed that the defendant’s counsel was actually engaged in a. court of record. It is suggested by the respondent that the court investigated the claim of the defendant’s counsel that he was actually engaged in a court of record and found that it was not true. We have no means of knowing what investigations the court below made, and must render judgment upon the record which is before us.

The order is reversed, and the judgment is vacated, and a new trial ordered, with costs to appellant to abide the event. All concur.