Klein v. Fairberg

243 A.D. 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1935
• Status: Published

Opinion

Order granting motion of defendant Van Praag & Co. to vacate and set aside judgment in plaintiff’s favor and for a new trial, and vacating and setting aside the resettled decision, reversed on the law, with costs, and motion denied, with ten dollars costs. In a proper case in the exercise of sound legal discretion the court has inherent power to vacate a judgment to avoid a miscarriage of justice. (Ladd v. Stevenson, 112 N. Y. 325; Hatch v. Central Nat’l Bank, 78 id. 487; Matter of Marsh, 242 App. Div. 290.) The need for exercising that power is not here present, (a) in that its exercise was founded essentially on what had been the basis of the court’s prior determination and embodied in an entered judgment, hence an exercise of appellate power; (b) the vacatur not being founded on anything extrinsic the trial record, the parties, in the exercise of discretion, should be left to pursue the ordinary remedy by appeal, which was and still is available. Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.