Schlaepfer v. Treuhaft — 142 N.Y.S. 277

Majority

p. 277

SCHLAEPFER v. TREUHAFT.

(Supreme Court, Appellate Term, First Department.

June 10, 1913.)

Headnote

Judgment (§ 345^[1] )-—Judgment on Pleadings—Vacation.

Where plaintiff had judgment on the pleadings after defendant had answered, it was error to vacate the judgment as one entered by default.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 674-676; Dee. Dig. § 345.*]

Appeal from City Court of New York, Special Term.

Action by Emil Schlaepfer against Henry Treujhaft. Er'om an order vacating a judgment, and granting defendant leave to serve an answer, plaintiff appeals. Reversed, and motion denied.

Argued June term, 1913, before SEABURY, PAGE, and BI-JUR, JJ.

Bernard H. Arnold, of New York City, for appellant.'

Frank M. Franklin, of New York City, for respondent.

The plaintiff sued the defendant for services rendered, in the City Court of the City of New York. The defendant answered, and the plaintiff moved for judgment on the pleadings. This motion was granted on'December 27, 1912. A copy of said judgment and notice of entry thereof was on that date served on the attorney for the defendant. The defendant subsequently removed to the state of New Jersey, and the plaintiff commenced an action in that state on the judgment recovered against the defendant, which action resulted in a judgment in favor of the plaintiff.' On May 6, 1913, the defendant moved to vacate the judgment recovered in the City Court, and that he be permitted to serve an answer. This motion was granted.

The facts recited above show that the motion was without justification or excuse. The order appealed from recites that the defendant’s “default is opened.” The judgment entered against the defend

p. 278

ant was not entered by default. Even if the judgment should be treated as having been entered by default, something more than the laches of the defendant should be shown to justify the vacation of the judgment.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.