Federal Sign System v. Pescia

146 N.Y.S. 311

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 5, 1914
• Status: Published

Opinion

GUY, J.

After issue had been joined in this action, the attorneys for the respective parties entered into a written stipulation dated and signed on September 19, 1913, by the terms of which it was agreed that the answ;er of the defendant should be deemed withdrawn, and that the plaintiff should have judgment for the amount claimed in the complaint with costs, and that the defendant should have a stay of all proceedings to enforce the judgment, and that no transcript of the judgment should be docketed and no execution issued until November 15, 1913. Judgment in favor of the plaintiff was thereupon entered. On December 18, 1913, the defendant made a motion for an order “vacating and setting aside the judgment heretofore rendered in favor of the plaintiff and. against the defendant and opening the default of the defendant and setting the case down for trial.” This motion was granted, and from the order granting the same the plaintiff appeals.

The grounds of this motion were that the defendant’s attorney had signed the stipulation “under the impression that the amount claimed by the plaintiff was only the sum of $10.35, instead of $441.41.” Hqw or why. the defendant’s attorney received such an impression is not disclosed in the moving papers. The summons claimed $441.41, and the complaint set forth two causes of action, one in paragraph 3 claiming $10.35, and one in paragraph 5 claiming $431.06, and each paragraph was specifically denied by the answer. The Municipal Court Act, § 1, subd. 16, confers jurisdiction upon the Municipal Court to enter a judgment in an action upon “consent of both parties,” and the judgment in the case at bar was therefore not a default judgment.

Order reversed, with costs, and judgment reinstated. All concur.