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Mayor of New York v. Smith

53 N.Y. St. Rep. 297 Court N.Y. Decision date 1893-06-30 English

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p. 297
The Mayor, etc., of the City of New York, App’lt, v. James M. Smith, Impl’d, Resp’t.[1]
(Court of Appeals,
Filed June 30, 1893. )

Headnote

Appeal—Judgment—Vacation of on account of unauthorized appearance.
The control possessed by courts of original jurisdiction over their judgments and orders, as well as in reference to the fact or the sufficiency of a notice of appearance in the action, is absolute and beyond any review by this court, unless it appears that there was an abuse of discretion.
Appeal from order of the New York superior court, general term, affirming order vacating judgment as to the defendant Smith.
This action was begun in 1868 against the sureties on a lease made to one Allerton, who at that time was solvent, but has since become irresponsible. An attorney appeared for all the defendants, the notice being entitled in the supreme court Nothing further was done until February, 1890, when notice of application for judgment by default was served, but the motion was abandoned ; in 1892 plaintiff filed a judgment roll, reciting the appearance of the defendants by attorney, but containing no proof of service.
Upon learning of this judgment, defendant moved to vacate the same as to him on the ground that no process had ever been served upon him; that he no knowledge of the action until the service of the notice of application for judgment in 1890, which was abandoned, and that he had never authorized any one to appear for him; which motion was granted.
David J. Dean, for app’lt; Wm. H. Newman, for resp’t.

Whether, under the circumstances disclosed, the court below should set aside the judgment as to this respondent was a matter which rested in its discretion. The circumstances were such as to warrant the action taken, in our opinion; but, irrespective of that opinion, there can be no doubt that the control possessed by courts of original jurisdiction over their judgments and orders, as well as in reference to the fact, or the sufficiency, cf a notice of appearance in the action, is absolute and beyond any review by this court, unless it appears that there was an abuse of discretion.

The appeal should be dismissed, with costs.

All concur.