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Rothenberg v. Herman

94 N.Y.S. 6 Court N.Y. App. Term Decision date 1905-05-23 English

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p. 6
ROTHENBERG v. HERMAN.
(Supreme Court, Appellate Term.
May 23, 1905.)

Headnote

Trial—Default-Relief.
Where in the Municipal Court both parties appeared, and a dismissal was had because plaintiff was not prepared to go on, he might move for relief from his default.
. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
Action by Nathan Rothenberg against Israel Herman. From a judgment for plaintiff, defendant appeals.
Affirmed.
See 90 N. Y. Supp. 431 .
Argued before SCOTT, P. J., and TRUAX and DOWNING, JJ.
Stanislaus N. Tuckman, for appellant.
David W. Rockmore, for respondent.

The case presented on this appeal differs in its facts from Eichner v. Cohen, 91 N. Y. Supp. 357 . In that case neither party appeared, and the cause fell of its own weight. Here there was an appearance on behalf of both parties, and a^ dismissal because plaintiff was not prepared to go on. There is no reason why, in such a case, a plaintiff may not move in the Municipal Court, as he may in any other, to be relieved of his default.

Judgment affirmed, with costs.