Bernard v. Rosenfield

157 N.Y.S. 1084

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 22, 1916
• Status: Published

Opinion

WEEKS, J.

This action was commenced, and judgment entered, and the motion made to- vacate the judgment and open the default, prior to September 1, 1915, and consequently the case is governed by the Municipal Court Act in force at that time.

[1-3] The first summons in this action was issued on July 6th, returnable on July 14th. An alias summons was issued returnable on July 23d, and another one returnable on July 28, 1915. Upon proof of service of this last summons, judgment by default was entered against the defendant. Claiming that he appeared on July 23d and obtained a dismissal of the complaint for failure of the plaintiff to appear, and that he had never been served with a summons returnable on July 28th, and therefore had not appeared in court pursuant to the requirement of such summons, the defendant moved to vacate the judgment taken against him by default upon that ground, and also asked to be permitted to come in and defend.

There is nothing in the record showing that any action was taken in the lower court upon July 23d, and due proof of service of a summons returnable July 28th was made, and the appearance by the defendant is noted by the clerk, but this is not important. The motion to vacate the judgment was denied, and the motion to open the default granted, upon condition that the defendant deposit the amount of the judgment within five days, and also allowing the plaintiff $5 costs to abide the event. The case was set down for trial for August 20, 1915, if these conditions were complied with; otherwise, the motion was denied.

This disposition was the correct one. This court has held that a judgment cannot be vacated upon motion because of nonservice of process and has indicated the proper practice to he followed. Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 404; Philips et al. v. Albert, Inc., 81 Misc. Rep. 131, 142 N. Y. Supp. 325. The only question, therefore, before the lower court, was that of opening the default. This was disposed of well within the power conferred upon the court by section 256 of the Municipal Court Act, and the judgment remained a default judgment, from which no appeal lies under section 257 of that act.

[4] There were two judgments entered herein—one on August 6, 1915, when defendant failed to appear, and when defendant failed to comply with the terms imposed for opening his default, and on August 20, 1915, another judgment for the same amount was entered in favor of the plaintiff. Of course, plaintiff is entitled to but one judgment.

Judgment of August 20th reversed, and judgment vacated. Appeal from judgment of August 6th dismissed, and order opening default affirmed, with $10 costs, with leave to the defendant to comply with the terms of such order within five days after entry and service of notice of entry of this order in the Municipal Court, and payment of said $10 costs. All concur.