Gaston Koch & Co. v. Julette Improvement Co.

136 Misc. 55, 239 N.Y.S. 127, 1929 N.Y. Misc. LEXIS 1063

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 14, 1929
• Status: Published

Opinion

Per Curiam.

Order unanimously reversed upon the law, with ten dollars costs and taxable disbursements, and motion remitted to the court below for consideration and disposition upon the merits. Plaintiff in due time moved to reargue its motion to set aside the verdict and for a new trial, which had previously been denied. The court, holding that it had no power to consider that motion, denied it.

Where a motion for a reargument is determined upon its merits, of course no appeal lies from the order entered thereon. (Weiss v. Weiss, 225 App. Div. 700.) But where such a motion is denied because of the erroneous belief that the court had no power to hear it, an appeal does lie. The court below had the power to pass upon the motion for the reargument, and should have done so upon its merits. (People v. Cimino, 163 App. Div. 217; Matthews v. Herdtfelder, 60 Hun, 521.)

If there is any such lack of authority in the Municipal Court as might appear from the decisions relied upon by the court below (Duran v. Chelsea Exch. Bank, 123 Misc. 158, and Guinta v. Yoost Photo Play Theatre Co., 126 id. 375), which we do not now determine, it seems clear it does not apply to the City Court.

The matter is, therefore, remitted to the court below so that the motion may be considered and determined upon its merits.

All concur; present, Cropsey, MacCrate and Lewis, JJ.