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Equitable Trust Co. v. Wehrenberg

143 N.Y.S. 1014 Court Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1913-11-13 English

Delivered by GUY, J.

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p. 1014
EQUITABLE TRUST CO. OF NEW YORK v. WEHRENBERG.
(Supreme Court, Appellate Term, First Department.
November 13, 1913.)

Headnote

Judgment (§ 152*)—Default—Dismissal.
After several adjournments, after issue joined, neither party appeared on the adjourned day, and the action was dismissed. Plaintiff moved to vacate the dismissal and to open its default, which motion was denied. Held, that by such dismissal the court did not lose jurisdiction, so as to preclude the granting of the motion.
[Ed. Note.—For' othér cases, see Judgment, Cent. Dig. § 299; Dec. Dig. § 152.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by the Equitable Trust Company of New York against William Wehrenberg. From an order of the Municipal Court denying a motion to vacate a judgment of dismissal and to open plaintiff’s de- . fault, plaintiff appeals. Reversed, and judgment vacated.
Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ.
McLear & McLear, of New York City, for appellant.
Antonio Ferme, of New York City, for respondent.

After several adjournments of the trial of this action, after issue joined, neither party appeared upon the adjourned day, and the action was dismissed. Subsequently the plaintiff moved to vacate the judgment of dismissal and to open its default, which motion was denied. From the order denying such motion, the plaintiff appeals.

The only objection raised against granting the plaintiff relief was that the court below had lost jurisdiction of the case and that plaintiff’s only remedy was to begin a new action. This was error. Johnson v. Monahan, 47 Misc. Rep. 689 , 94 N. Y. Supp. 351 ; Droege v. Herz, 48 Misc. Rep. 346 , 95 N. Y. Supp. 570 ; Goldstein v. Mason-Seamon Trans. Co., 137 N. Y. Supp. 961 .

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

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