Arzt v. Derna International, Inc.

204 Misc. 195, 122 N.Y.S.2d 258

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 21, 1953
• Status: Published

Opinions

Hofstadter, J.

In three actions, two against the defendant, Derna International, Inc., and one against the defendant, Framen Steel Supply Company, Inc., tried together without consolidation, the defendants appeal from adverse judgments of the Municipal Court, Ninth District, Manhattan, after trial before Justice McNamara, without a jury. They appeal also from later orders in each'of the three actions made by the Trial Justice denying their motions to vacate the judgments and for a new trial on the ground that the decision was not rendered within the time limited therefor by section 119 of the New York City Municipal Court Code. Since the facts are fully set forth in the dissenting opinion of Mr. Justice Edeb, restatement of them is unnecessary. We are all agreed that the Trial Justice’s disposition on the merits was correct and, but for the difference of opinion on the question of the timeliness of the rendering of his decision, there would be no occasion for an opinion in the case.

By stipulation the Trial Justice’s time to render his decision was extended to November 7, 1952. On November 7, 1952, the Trial Justice delivered to his stenographer his signed decision in each of the three cases, dated November 7, 1952. In addition to a direction for judgment in each instance, the decision in the first action also embodied an opinion. The stenographer requested a court attendant to take the decisions. The weekend of November 7-10,1952, intervened and apparently the decisions did not reach the clerk’s office until the following Monday, November 10, 1952. In the docket the entry is made under the date of November 7, 1952.

In our opinion the date of rendering decision, within the purview of section 119 of the Municipal Court Code is the date on which it is released by the Trial Justice. When the Trial Justice signs his decision and delivers it to his stenographer or a court attendant for transmission to the clerk, he has completed the judicial function of deciding the issue. He has made his determination and sent it on its way through the regular channels. The delivery to the clerk is a ministerial not a judicial act. Delay, omission or mishap in the performance of this ministerial duty committed to others should not vitiate a decision rendered by a justice within the prescribed period. We find support for our conclusion in Drabik v. John Hancock Mut. Life Ins. Co. (154 Misc. 829) and Austin, Nichols & Co. v. Jobes (112 Misc. 121).

Collins v. Davis (114 N. Y. S. 792), in our opinion, holds nothing to the contrary. It was decided that notice of appeal dated December 26, 1907, from a judgment entered either on July 23d, or August 3, 1907, was too late. Under the statute then in effect the time within which an appeal might be taken ran from the time judgment was actually entered in the docket book, and not from the date of the decision upon which judgment was entered. The court there was dealing with the date of the entry of judgment, not with the date of rendering the decision.

We, therefore, hold that the decision was rendered on November 7,1952, and was timely.

Though the facts vary slightly, the same question is presented in Six East Corp. v. Vaughn (N. Y. L. J., May 22, 1953, p. 1727, col. 5) and we uphold the timeliness of the decision in that case also.

The judgments are affirmed, with $25 costs as of one appeal, and the order herein is affirmed, with $10 costs as of one appeal.