Majority
p. 504(32 Misc. Rep. 694.) WOLCHOCK v. TOMBARELLI. (Supreme Court, Appellate Term. November 7, 1900.) Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ.
Headnote
Vacating Judgment—Order—Validity.An order of a municipal court on vacating a judgment, which omits to set the cause down for pleading, hearing, or trial, is invalid, though defendant was not a resident of the county.
Appeal from municipal court, borough of Manhattan.
Action by Samuel Wolchock against Giovanni Tombarelli. From an order vacating a judgment against plaintiff, he appeals.
Reversed.
M. Greenstein, for appellant.
E. McKinley, for respondent.
The order appealed from, which vacated and set aside a judgment against the plaintiff absolutely, omitted to set the case down for pleading, hearing, or trial. Such an order is unauthorized in the municipal court. Manufacturing Co. v. Catharine, 25 Misc. Rep. 338 , 55 N. Y. Supp. 475 . The reason given by the justice for making the order, to wit, that the defendant was not a resident of the county, is not sufficient. Worthington v. Accident Co. (N. Y.) 58 N. E. 102 .
The order appealed from must be reversed, with $10 costs to appellant.
Cases cited
- Gormully & Jeffery Manufacturing Co. v. Catharine 25 Misc. Rep. 338 p. 504