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La Spina v. Pennsylvania Railroad

126 N.Y.S. 88 Court N.Y. App. Term Decision date 1910-12-08 English

Delivered by PLATZEK, J.

Contents

Majority

p. 88
(69 Misc. Rep. 616.)
LA SPINA v. PENNSYLVANIA R. CO.
(Supreme Court, Appellate Term.
December 8, 1910.)

Headnote

1. Courts (§ 188[2] )—Municipal Court of the City of New York—Jurisdiction.
The Municipal Court of the City of New York is a court of limited jurisdiction, its powers being purely statutory; and if it transcends the jurisdiction conferred by statute its judgment or order will be void.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]
p. 89
2. Courts (§ 189[2] )—Municipal Court—Vacation or Modification op Judgment.
The only power'possessed by a'justice of the Municipal Court of the City oí New York to vacate, amend, or modify a judgment is conferred by Municipal Cburt Act (Laws 1902, c. 580) § 254; _ Code Civ. Proe. § 999, giving a trial judge authority to entertain a motion to set aside the verdict or a direction dismissing the complaint and grant a new trial, applying only to actions in the Supreme Court, the City Court of the City of New York, or a County Court, under section 3347, subd. 7.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
3. Courts (§ 189*)—Municipal Courts—Order Vacating Judgment.
Under Municipal Court Act (Laws 1902, c. 580) § 254, giving a justice of that court authority to set aside the verdict of a jury, or to vacate, amend, or modify any judgment rendered upon a trial by the court without a jury, such justice has no power to vacate a judgment dismissing the complaint.
4. Courts (§ 190*)—Municipal Court—Appealable Order.
An order of a Municipal Court justice vacating a judgment of dismissal, not being mentioned in Municipal Court Act (Laws 1902, c. 580) §§ 253 to ’256, inclusive, specifying the orders of such court which shall be appeal-able, such order is not reviewable upon an appeal taken directly therefrom.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Salvatore Da Spina against the Pennsylvania Railroad Company. From an order vacating a judgment of dismissal and ordering a new trial, defendant appeals.
Dismissed.
Argued before GUY, PLATZEK, and GAVEGAN, JJ.
Burlingham, Montgomery ■& Beecher (Norman B. Beecher, of counsel), for appellant.
Amedeo A. Bertini (Milton M. Goldsmith, of coimsel), for respondent.

This action was tried before the court with a jury. At the close of the plaintiff’s case, upon motion of the defendant’s attorney, the complaint was dismissed, and judgment was entered accordingly. Subsequently the plaintiff moved for an order vacating the judgment and setting the case down for trial, which motion was granted, and from the order thus made this appeal is taken.

The Municipal Court is a court of limited jurisdiction. Its powers are purely statutory, and if it transcends the jurisdiction conferred by statute its judgments or orders will be void. “In their organic power they take nothing by implication.” Gillin v. Canary, 19 Misc. Rep. 594 , 596, 44 N. Y. Supp. 313 , 315. The only power given to a justice of the Municipal Court to “vacate, amend, or modify any judgment” rendered by him is conferred by section 254 of the Municipal Court act (Laws 1902, c. 580). Ryan v. Brown, 51 Misc. Rep. 67 , 99 N. Y. Supp. 868 . The provisions of section 999 of the Code of Civil Procedure cannot be made applicable, as that section applies

p. 90
only to actions in the Supreme Court, the City Court of the City of New York, or a County Court. Section 3347, subd. 7, of the Code. By virtue of the provisions of section 354 of the Municipal Court act, a justice of that court may set aside the verdict of a jury, or he may vacate, amend, or modify any judgment rendered upon a trial by the court without a jury.

The act of the justice in this case granting the order aforesaid comes within neither of the above enumerated cases. If the dismissal of the complaint was improper, the plaintiff’s remedy was to have appealed from the judgment entered upon such'dismissal. The order vacating the judgment was unauthorized, and the court below was without jurisdiction to make it. It is not, however, reviewable upon an appeal taken directly therefrom, as it is not one of the orders mentioned in sections 353, 354, 355, or 356 of the Municipal Court act, and only such orders as those specified therein are appealable. White v. Lawyers’ Surety Co. (Sup.) 84 N. Y. Supp. 347 ; Spiegelman v. Union Ry. Co., 95 App. Div. 93 , 88 N. Y. Supp. 478 ; Levy v. Warschauer (App. Term, Oct. 1910, not yet officially reported) 135 N. Y. Supp. 635 .

Appeal dismissed, with $10 costs. All concur.