Hyperlawhypertext legal database Herz v. Illinois Surety Co. 123 N.Y.S. 808

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Herz v. Illinois Surety Co.

123 N.Y.S. 808 Court N.Y. App. Term Decision date 1910-06-24 English

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p. 808
HERZ v. ILLINOIS SURETY CO.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Courts (§ 189[1] )—Municipal Courts — Submission of Controversy on Agreed Statement of Facts—Affidavits.
Under Municipal Court Act (Acts 1902, c. 580) § 241, authorizing the submission of a controversy on an agreed statement of facts, accompanied by the affidavit of a party that the 'controversy is real and submitted in good faith, the court has no jurisdiction to render judgment on an agreed statement of facts, unaccompanied by any affidavit.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Isidor Herz against the Illinois Surety Company. From á judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
Frederick L. C. Keating, for appellant.
Wray & Callaghan, for respondent.

This judgment purports to have been rendered upon an agreed statement of facts submitted to the lower court. The only provision for the submission of a controversy upon an agreed statement of facts in the Municipal Court is contained in section 241 of the Municipal Court act (Acts 1902, c. 580). That section requires that such statement must be accompanied with the affidavit of one or more of the parties thereto to the effect that the controversy is real and the submission made in good faith, for the purpose of determining the rights of the parties; and this court has held that without such an affidavit the court below has no jurisdiction to render a judgment. Neustaedter v. Weiner, 57 Misc. Rep. 643 , 108 N. Y. Supp.

p. 809
650 ; Lax v. Fourteenth Street Store, 49 Misc. Rep. 627 , 97 N. Y. Supp. 396 .

Judgment reversed, without costs, and a new trial ordered.