Schwartz v. Schendel — 53 N.Y.S. 773

Majority

p. 773

(24 Misc. Rep. 701.)

SCHWARTZ v. SCHENDEL.

(Supreme Court, Appellate Term.

October 5, 1898.)

Headnote

1. Judgments—Opening Default—Review—Discretion.

Under Laws 1896, c. 748, which provides that the district court of New York City may at any time open any default, and set aside any judgment entered thereon, on such terms and conditions as the justice may deem proper, and that from such an order an appeal shall lie as from a judgment of said court, the supreme court has power to review such an order setting aside a default.

S. Same—Conditions—Costs.

Under Laws 1896, e. 748, which provides that the district court of New York City may at any time open any default, and set aside any judgment entered thereon, on such terms and conditions as the justice may deem proper, and that the justice “may award such costs, not exceeding $10, as a condition for opening such default, * * * as in his discretion shall be just and proper,” the justice cannot, as a condition for setting aside a default, impose the costs embraced in the judgment by default in addition to $10 general costs.

S. Same—Security.

Under Laws 1896, c. 748, which provides that the district court of New York City may at any time open any default, and set aside any judgment entered thereon, on such terms and conditions as the justice may deem proper, and that the justice may, as a condition, order the defendant to give an undertaking not to sell or transfer any of his property to hinder plaintiff in the collection of his claim, the court cannot, as a condition for

p. 774

opening a default, require defendant to deposit with the clerk the amount of plaintiff’s claim.

4. Same—Modification on Appeal—Proceedings Below.

Where an order of the district court of New York City opening a default has been modified by the supreme court, the order should be presented for settlement.

5. Same.

Where an order of the district court of New York City opening a default has been modified, the order should contain a provision setting the cause down for trial on a day to be designated therein.

6. Same.

Where an order of the district court of New York City opening a default on certain conditions has been vacated for noncompliance with such conditions, an order of the supreme court modifying the first order as to1 conditions will supersede the subsequent order vacating the order appealed from.

7. Same.

Where a judgment by default against a defendant has been vacated ob appeal, defendant may, on the day fixed by the appellate court for trial, appear, and defend without further question.

Appeal from Second district court.

Action by Olga Schwartz against Simon Schendel. Defendant appeals from an order imposing conditions upon opening a default against him. Order modified and affirmed, without costs.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

Benno Loewy, for appellant.

Abraham B. Schleimer, for respondent.

In opening defendant’s default, the court below imposed the following conditions: (1) The payment of $10 costs; (2)-the payment of the costs embraced in the judgment by default, amounting to $17.50; (3) the payment of $16.50 for witness feesi;. (4) the deposit with the clerk of $200, the amount of the plaintiff’s claim. The defendant appeals from only so much of the order as imposes the conditions above mentioned. The objection is made that this court has no power to review the terms upon which such an order is made, on the ground that, under chapter 748 of the Laws of 1896, which confers authority upon the court below to open such defaults, the conditions which may be imposed rest solely in the discretion of the justice. Such, however, is not the law. The same statute which confers jurisdiction upon the lower court declares broadly and without limitation that an appeal from the order may be taken to this, court; and while we will not ordinarily undertake to review a discretion which has been exercised below within reasonable limits, we consider this court free to correct any abuse of such discretion, and certainly any excess of authority which the order may disclose. The action of the justice in opening the default in this case was undoubtedly right, and was called for by the facts presented on the motion; but in view of the stipulation of counsel and the direction of the court for a peremptory trial on the adjourned day, we are not disposed to hold with the counsel for the defendant that the justice should not have imposed any conditions whatever in so doing. We are of

p. 775

the opinion, however, that the justice had no power'to require the payment of the costs awarded in the judgment entered upon the default, or to exact the deposit of the sum of $200 as security for the payment of the plaintiff’s claim if a recovery should be had by ‘him in this action. While it is true that chapter 748 of the Laws of 1896 authorizes the court or justice to open defaults, and to set aside judgments entered thereon, “upon such terms and conditions as the court or justice may deem proper,” it also provides that the justice “may award such costs, not exceeding ten dollars, as a condition for opening any such default.” A special provision, such as this, must be regarded as qualifying and limiting the general power expressed in the broad terms first above quoted, and as expressing the only authority which is conferred to impose the payment of costs as a condition of granting the relief asked for. When, therefore, the trial justice required the defendant in this case, as he did, to pay $10 costs, he exhausted his authority in that regard, and the exaction of the payment of further costs was without warrant of law.

The counsel for the plaintiff cites the case of Szerlip v. Baier, 22 Misc. Rep. 351 , 49 N. Y. Supp. 300 , as an authority opposed to this position. We cannot agree with this view. In that case the justice required, as one of the conditions of opening the default, the payment of a judgment recovered against the defendant for $73. It is true that the recovery was for costs incurred in the action, but they were costs awarded by this court upon the reversal of an order which had been previously made, and from which an appeal had been taken. The court, in making it a condition of opening the default that this judgment should be paid, was not directing the payment of costs, as such, within the meaning of chapter 748 of the Laws of 1896. The judgment was absolute, and the defendant was bound in any event to pay it, and in requiring it to be paid the court did not in any way augment his liabilities, or subject him to the payment of costs which he was not then absolutely bound to pay.

The construction which we have given to the statute also requires us to disapprove of the condition directing the deposit by the defendant of $200, above mentioned. The act in question also contains a special provision to the effect that the justice may, “as a condition for opening any default or vacating, modifying or setting aside any judgment, order any defendant in default to give an undertaking with sufficient sureties to the effect that such defendant will not sell, assign or transfer any of his property with intent to hinder, delay or defraud the plaintiff in the collection of his claim or demand, if the plaintiff shall prevail on the trial of such action, and that such defendant or his sureties will pay the amount of any judgment recovered against such defendant in such action.” The record shows that the provision for the deposit of money contained in the order was based upon some proof tending to show that the defendant contemplated transferring his property so as to place it beyond the reach of an execution. It was, therefore, competent for the court to secure the plaintiff against any such action, but it could only be done in conformity with the special provision in that behalf which we have quoted, and which must be construed as excluding the adoption of any other method for that pur

p. 776

pose than that which the statute thus specifically sanctions. It must be remembered that the jurisdiction of the municipal court of the city of New York and its justices is purely statutory, and does not extend beyond that which is clearly conferred by legislative act. We are therefore of the opinion that the order in question should be modified by striking out the second and fourth provisions as above numbered, and by substituting for the fourth provision a requirement that the defendant give an undertaking in the sum of $200, conditioned as the statute prescribes, and that, as so modified, it be affirmed, without costs. The order should be presented for settlement, and should contain a provision setting the cause down for trial on a day to be designated therein. In order to avoid further complications and appeals, we desire to say that the effect of the order on this appeal will be to supersede the subsequent order made by the justice vacating the order appealed from on the ground of noncompliance with the conditions which it exacted; and as we have also vacated the judgment recovered on the default upon the appeal taken therefrom, the defendant, on the day to be fixed by us for the trial, is entitled to appear and defend the action without further question.

Order modified accordingly, and, as so modified, affirmed, without costs. All concur.

Cases cited

Szerlip v. Baier 22 Misc. Rep. 351 N.Y. App. Term 1898-01-17 p. 775