Johnson v. Manning

80 A.D. 368

Opinion

Jenks, J.:

The petition of the defendant shows that the judgment was recovered upon default. Under the present practice, such an appeal in the first instance would not lie. (Municipal Court Act [Laws of 1902, chap. 580], § 257.) But at the time this action was begun, and when the judgment was obtained, the plaintiff had the right of appeal from an order opening the default and setting aside his judgment. (Beebe v. Nassau Show Case Co., 41 App. Div. 456.) I think that this right was preserved in this case by section 361 of the Municipal Court Act. Without passing upon the various objections raised to the practice of the respondent, I think that there is one which is fatal. Section 1367 of the Consolidation Act* (now repealed by section 364 of the present Municipal Court Act) provides that the order should recite the grounds upon which it was granted. I think that this requirement was substantial for the purpose of apprising the appellate court of the grounds of the decision brought up for review. As the present order fails to recite and to contain the grounds for it, I advise that it be reversed, unless within ten days the respondent procure an amendment to the order.

Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.

Order of the Municipal Court reversed, in accordance with the opinion of Jerks, J.

Footnotes

*

Laws of 1883, chap. 410, as amd. by Laws of 1896, chap. 748.— [Rep.