Ellenbogen v. Martin

99 N.Y.S. 463

Opinion

PER CURIAM.

The plaintiff, a marshal of the city of New York, brought this action against the defendants to recover $384.51 as damages for an alleged conversion of goods on which the plaintiff had levied as a marshal. The learned trial justice rendered a judgment for the defendants, but thereafter, on plaintiff’s motion, he vacated the judgment and ordered a new trial. Section 254 of the Municipal Court act (Laws 1902, p. 1563, c. 580) permits the justice to vacate a judgment rendered upon a trial by the court without a jury; but his action must be based upon some good ground, such, for instance, as a clear failure of the evidence to warrant the judgment. The evidence adduced upon this trial obviously necessitated the judgment rendered, and apparently the judgment was vacated because the learned trial justice believed that other evidence could be obtained which might establish the claim against the defendants.

Under the circumstances we think the judgment was vacated upon insufficient grounds, and that the order appealed from should be reversed, with costs.