Majority
p. 398POPKIN v. FRIEDLANDER. SAME v. SUBIN. (23 Misc. Rep. 475.) (Supreme Court, Appellate Term. May 3, 1898.) Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERIOH, JJ.
Headnote
Justices oe the Peace—Opening Judgment.The failure of a justice’s order opening a default to recite the grounds therefor, in compliance with Consolidation Act, § 1367, as amended by Laws 1896, c. 748, is fatal, and requires a reversal thereof on appeal.
Appeal from Fourth district court.
Actions by Isaac Popkin against Harris Friedlander and Jacob Subin. From orders opening plaintiff’s default in the case, defendants appeal.
Reversed.
Moses Feltenstein, for appellants.
I. B. Ripinsky, for respondent.
We are not inclined to interfere with the decision of the justice below opening the defaults; and, if a review was
p. 399
asked for solely on the merits, we should affirm the orders. The point, however, is made, that the orders appealed from do not comply with the requirements of chapter 748 of the Laws of 1896, amending section 1867 of the consolidation act, which, among other things, provides that the order of a justice on opening a default “shall recite and contain the grounds for the order.” The objection is well taken, as the justice has utterly failed to comply with this requirement. This is fatal to the orders, and calls for a reversal. Colwell v. Devlin, 20 Misc. Rep. 355 , 45 N. Y. Supp. 850 .
Orders reversed, with costs, and causes remitted to the municipal court of the city of New York, borough of Manhattan, Fourth district, for the entry of proper orders upon notice.
Cases cited
- Colwell v. Devlin 20 Misc. Rep. 355 p. 399