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Leavitt v. Epstein

86 N.Y.S. 208 Court N.Y. App. Term Decision date 1904-01-25 English

Delivered by MacLEAN, J.

Contents

Majority

p. 208
LEAVITT v. EPSTEIN.
(Supreme Court, Appellate Term.
January 25, 1904.)

Headnote

1. Municipal Court—Appeal—Order Denying Vacation of Default—Statutes—Dismissal.
Municipal Court Act, §§ 253-257 (Laws 1902, pp. 1562, 1563, c. 580), though granting an appeal from orders denying motions to vacate judgments entered on a verdict of a jury or on trial without a jury, provides no appeal from an order denying a motion to vacate a default judgment;
p. 209
and section 311 (page 1578) provides for an appeal from judgment by one who did not appear, and on whom no summons was served. Held, that no appeal lies from an order of the Municipal Court denying a motion to vacate a default judgment.
Appeal from Municipal Court, Borough of Manhattan, Fpurth District.
Suit by Louis Leavitt against Sarah Epstein. From an order denying a motion to vacate a default judgment, defendant appeals. Dismissed.
Argued before FREEDMAN, P. J., and MacLEAN and DAVIS. JJ-
Charles H. Smith, for appellant.
Steuer & Hoffman, for respondent.

It is objected that under the decision of Beebe v. Nassau Show Case Co., 41 App. Div. 456 , 58 N. Y. Supp. 769 , and order of the Municipal Court denying a motion to vacate a judgment entered by default is not appealable, and so it must now be determined, for sections 253 to 257 of the Municipal Court Act (Laws 1902, pp. 1562, 1563, c. 580), though providing, .among others, for appeals from orders denying motions to vacate judgments entered upon the verdict of a jury or entered upon a trial by the court without a jury, do not provide for appeals from orders denying motions to vacate judgments taken by default, the rights of persons claiming nonservice of summons being preserved by section 311 of the same act (page 1578). However, were review here authorized, the disposition of the case by the court below would call for no interference in view of the return made and certified to this court. The appeal herein must be dismissed, with costs.

Appeal dismissed, with costs. All concur.