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Lerner v. Wagner

74 N.Y.S. 851 Court N.Y. App. Term English

Delivered by SCOTT, J.

Contents

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p. 851
LERNER v. WAGNER et al.
(Supreme Court, Appellate Term.
October, 1901.)

Headnote

1. Defaults—Vacating—Reciting Grounds in Order.
Under the statute requiring the order of a justice setting aside a default to recite the grounds therefor, an order reciting its grounds as “being that the defendants have a trial and a day in court” is defective.
2. Same—Effect of Going to Trial.
Where the parties stipulate that going to trial shall be without prejudice to plaintiff’s pending appeal from an order opening a default.
p. 852
and such order is reversed, a judgment in defendants’ favor entered on the trial must be reversed also.
Appeal from municipal court, borough of Manhattan, Ninth district.
Action by Aaron Lerner against Max Wagner and another. Judgment for defendants, and plaintiff appeals.
Reversed.
Argued before McADAM, P. J., and SCOTT and MacLEAN, JJ.
Leo Lerner, for appellant.
Benjamin Levinson, for respondents.

The statute requires that the order of a justice opening a default and setting aside, vacating, or modifying a judgment entered thereon shall recite and contain the grounds for the order. The order made in the present case undertakes to compfy with this rule by reciting that, “The ground for opening of the said default being that the defendants have a trial and a day in court in the above action.” This may be a reason why the justice was inclined to make the order, but it certainly does not state the grounds upon which he did so. It was therefore defective, and must be reversed. Stivers v. Ritt, 29 Misc. Rep. 341 , 60 N. Y. Supp. 507 . The parties stipulated that going to trial should be without prejudice to the appeal from the order opening the default. As the order must be reversed, the judgment entered upon the trial must also be reversed. This restores the judgment entered on default, leaving the defendants at liberty to renew their motion to open the default, and, if successful, to enter a proper order. Order reversed, with $10 costs to appellant, and judgment reversed, with costs to the appellant, both to abide the event of a new trial, if the default be properly opened and a new trial had.

Order reversed, with $10 costs to appellant^ and judgment reversed, with costs to appellant, both to abide event of new trial. All concur.

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