Duke v. Mount Morris Construction Co.

Appellate Division of the Supreme Court of New York

Duke v. Mount Morris Construction Co.

127 A.D. 39, 111 N.Y.S. 313, 1908 N.Y. App. Div. LEXIS 1876

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 1908

StatusPublished

Cited by1 cases

This text of 127 A.D. 39 (Duke v. Mount Morris Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duke v. Mount Morris Construction Co., 127 A.D. 39, 111 N.Y.S. 313, 1908 N.Y. App. Div. LEXIS 1876 (N.Y. Ct. App. 1908).

Pincite

Opinion

Hooker, J.:

This is an action brought on a promissory note purporting to have been made by the defendant, a corporation. Tlie answer was a general denial, and, when it was filed there was neither filed nor [40]*40served an order of a judge of the Municipal Court directing that the issues he tried, as provided in section 1778 of the Code of Civil Procedure. Upon the motion of the plaintiff the court gave judgment in his favor for the relief demanded in the complaint, and the defendant appeals. '

The question raised' by this appeal- is whether or not section 1778 of the Code, of Civil Procedure applies to cases, brought in the. Municipal Court of the city of ¡New York. Section 1778 reads as ■follows : “ In an action against a foreign ,or. domestic corporation to recover damages for the nonpayment-of a promissory note or other evidence of debt for the absolute payment of money upon demand . or at a particular'time,'an order extending; the time to ‘ answer or -, demur shall not be granted except by the court, Upon notice to the plaintiff’s attorney. In such an action, unless the defendant serves, . witli a copy of his answer or demurrer, a. copy of an order of a judgé directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at thé expiration.of twenty days after service of a copy of the complaint, either personally with, the summons or upon tlm, defendant’s attorney, pursuant to his - demand therefor; or, if the service of the summons was .otherwise than personal, at the expiration of twenty days after the service‘is complete.” Section 20 of the Municipal Court Act (Laws of 1902, chap. 580) reads ás follows“ The provisions, pf the Code of Civil ¡Procedure and rules and regulations of the Supreme Court as they may .be from time to time shall apply to the Municipal Court .as far as, the same can be made applicable and are not in conflict with th§( provisions of this, act; in case of such conflict this act shall govern.” There is nothing in section 1778 which in anywise conflicts with any of the provisions of the Municipal Court Act. Section .1778 deals with matter of practice, and no reason exists logically .or by virtue of other provisions of the Municipal Court Act why it should not govern in the Municipal Court. To section 20 of the Municipal Court Act real value must be given; and it lias heretofore, been recognized by this court as drawing to that-court some of the provisions of sections 550 and - 1487 .of the Code.. (Liederman v. Rovner, 82 App. Div. 541.)

-. That section-1778 gives the plaintiff a right to take judgment as upon a default, only .at-the expiration of twenty days after .the serv[41]*41ice of a copy of the complaint, does not prevent the applicability of this section to the Municipal Court practice. Schlegel v. American Beer, etc., Co. (2 Civ. Proc. Rep. 393) was a motion to open and set aside a judgment taken by default in favor of the plaintiff in the Mew York Marine Court, where the plaintiff had invoked the provisions of section 1778 of the Code and entered his judgment as upon a default in the absence of an order made by the court; the court decided that although an answer in the Marine Court must be served within six days after the service of the complaint, yet section 1778 of the Code applied to that court, and .said : “ It seems clear that the Legislature intended that the order of the judge should be served within the time when the answer was due, and when the statute provides that the answer should be due in six days that the order should be served within that time, and it seems unnecessary to discuss the reasonableness of such a construction, for it is fairly inferable from the section itself, as well as from the general intent and purpose of the provision. This section took the place of the 2d Pevised Statutes, 458, chap. 8, title 4, art. 5, § 8,

* which authorized the plaintiff in an action against a corporation, founded on a note or other evidence of debt, to apply to the court for judgment on the return day, and the court then rendered judgment in favor of plaintiff unless it was made to appear that the corporation had a good and substantial defense on the merits. It is clear, therefore, that the return day under the old practice was the essential element of time, and the counsel is bound to construe the present provision in the light of the former legislation and the former practice.” In. Beaumond v. Diecks,’ etc., Co. (5 Civ. Proc. Rep. 274) the applicability of section 1778 of the Code of Civil Procedure to the practice of the City Court of the city of New York was likewise recognized.

The judgment should be affirmed, with costs.

Jenks, Gatnor, Pioh and Míller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

See R. S. pt. 3, chap. 8, tit. 4, art. 1, §§ 8-10; 3 R. S. 458,459, §§ 8-10.— [Rep.

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Hooker, J.:

This is an action brought on a promissory note purporting to have been made by the defendant, a corporation. Tlie answer was a general denial, and, when it was filed there was neither filed nor [40]*40served an order of a judge of the Municipal Court directing that the issues he tried, as provided in section 1778 of the Code of Civil Procedure. Upon the motion of the plaintiff the court gave judgment in his favor for the relief demanded in the complaint, and the defendant appeals. '

The question raised' by this appeal- is whether or not section 1778 of the Code, of Civil Procedure applies to cases, brought in the. Municipal Court of the city of ¡New York. Section 1778 reads as ■follows : “ In an action against a foreign ,or. domestic corporation to recover damages for the nonpayment-of a promissory note or other evidence of debt for the absolute payment of money upon demand . or at a particular'time,'an order extending; the time to ‘ answer or -, demur shall not be granted except by the court, Upon notice to the plaintiff’s attorney. In such an action, unless the defendant serves, . witli a copy of his answer or demurrer, a. copy of an order of a judgé directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at thé expiration.of twenty days after service of a copy of the complaint, either personally with, the summons or upon tlm, defendant’s attorney, pursuant to his - demand therefor; or, if the service of the summons was .otherwise than personal, at the expiration of twenty days after the service‘is complete.” Section 20 of the Municipal Court Act (Laws of 1902, chap. 580) reads ás follows“ The provisions, pf the Code of Civil ¡Procedure and rules and regulations of the Supreme Court as they may .be from time to time shall apply to the Municipal Court .as far as, the same can be made applicable and are not in conflict with th§( provisions of this, act; in case of such conflict this act shall govern.” There is nothing in section 1778 which in anywise conflicts with any of the provisions of the Municipal Court Act. Section .1778 deals with matter of practice, and no reason exists logically .or by virtue of other provisions of the Municipal Court Act why it should not govern in the Municipal Court. To section 20 of the Municipal Court Act real value must be given; and it lias heretofore, been recognized by this court as drawing to that-court some of the provisions of sections 550 and - 1487 .of the Code.. (Liederman v. Rovner, 82 App. Div. 541.)

-. That section-1778 gives the plaintiff a right to take judgment as upon a default, only .at-the expiration of twenty days after .the serv[41]*41ice of a copy of the complaint, does not prevent the applicability of this section to the Municipal Court practice. Schlegel v. American Beer, etc., Co. (2 Civ. Proc. Rep. 393) was a motion to open and set aside a judgment taken by default in favor of the plaintiff in the Mew York Marine Court, where the plaintiff had invoked the provisions of section 1778 of the Code and entered his judgment as upon a default in the absence of an order made by the court; the court decided that although an answer in the Marine Court must be served within six days after the service of the complaint, yet section 1778 of the Code applied to that court, and .said : “ It seems clear that the Legislature intended that the order of the judge should be served within the time when the answer was due, and when the statute provides that the answer should be due in six days that the order should be served within that time, and it seems unnecessary to discuss the reasonableness of such a construction, for it is fairly inferable from the section itself, as well as from the general intent and purpose of the provision. This section took the place of the 2d Pevised Statutes, 458, chap. 8, title 4, art. 5, § 8,

* which authorized the plaintiff in an action against a corporation, founded on a note or other evidence of debt, to apply to the court for judgment on the return day, and the court then rendered judgment in favor of plaintiff unless it was made to appear that the corporation had a good and substantial defense on the merits. It is clear, therefore, that the return day under the old practice was the essential element of time, and the counsel is bound to construe the present provision in the light of the former legislation and the former practice.” In. Beaumond v. Diecks,’ etc., Co. (5 Civ. Proc. Rep. 274) the applicability of section 1778 of the Code of Civil Procedure to the practice of the City Court of the city of New York was likewise recognized.

The judgment should be affirmed, with costs.

Jenks, Gatnor, Pioh and Míller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

See R. S. pt. 3, chap. 8, tit. 4, art. 1, §§ 8-10; 3 R. S. 458,459, §§ 8-10.— [Rep.

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127 A.D. 39, 111 N.Y.S. 313, 1908 N.Y. App. Div. LEXIS 1876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duke-v-mount-morris-construction-co-nyappdiv-1908.

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