Hyperlawhypertext legal database Levy v. Warschauer 125 N.Y.S. 625

← Cases

Levy v. Warschauer

125 N.Y.S. 625 Court N.Y. App. Term Decision date 1910-11-11 English

Delivered by *626 BIJUR, J.

Contents

Majority

p. 625
LEVY et al. v. WARSCHAUER et al.
(Supreme Court, Appellate Term.
November 11, 1910.)

Headnote

Coubts (§ 190*)—Municipal Courts — Orders Appealable—Orders op Municipal Court.
An appeal will not lie from an order of the Municipal Court vacating a default judgment for plaintiff for a sum alleged in the complaint as the amount claimed through a clerical error, when the real amount of plaintiff’s claim was a greater sum; such appeal not being contemplated by Municipal Court Act (Laws 1902, c. 580) §§ 253-256, relating respectively to the opening of' defaults, vacating judgments on motion, new trials for fraud or newly discovered evidence, and to the imposition of costs and conditions upon opening defaults, or vacating, etc., any judgment.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
A-Ction by R. Frank Levy and another, doing business under the firm name of the Levy Company, against Isidor Warschauer and others, copartners doing business as Warschauer Bros. & Weber. From an order vacating a judgment for plaintiffs, entered on defendants’ default, defendants appeal.
Appeal dismissed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
Jones, McKinny & Steinbrink, for appellants.
Kauffman & Herzberg, for respondents.

Plaintiffs’ claim was for some $132. Prior to suit brought, defendants tendered $92 in full settlement, which was refused. Plaintiffs then brought this action, but by a clerical error claimed only $40. On the return day the defendants waited until a default had been taken, and then paid into court the sum of $42, being the amount of the judgment and costs.

When the plaintiffs’ counsel became aware of the error, they moved to vacate the judgment, for leave to discontinue the action, and for a direction to the clerk to return to defendants the $42 paid_ in by them. This motion was granted, upon condition that plaintiffs should pay defendants $10 costs and their disbursements. It is from this order that defendants appeal.

The order, not being one of those enumerated in sections 253, 254, 255, or 256 of the Municipal Court act (Laws 1902, c. 580), is therefore not appealable, and the appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.