Lasker v. Guterman

Appellate Terms of the Supreme Court of New York

Lasker v. Guterman

115 N.Y.S. 114

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

This text of 115 N.Y.S. 114 (Lasker v. Guterman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lasker v. Guterman, 115 N.Y.S. 114 (N.Y. Ct. App. 1909).

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Opinion

MacLEAN, J.

The plaintiff appeals from an order of the court below “vacating and setting aside the judgment herein and dismissing the above-entitled action.” The order is void, and is not appealable. The court exceeded its jurisdictional powers. “The Appellate Term has frequently decided that the construction to be given section 253 Municipal Court Act (Laws 1902, p. 1562, c. 580), is .not that it gives the court power to vacate and set aside a judgment and dismiss the action, but that a judgment can only be vacated when a default is opened, and the order opening the default must contain a provision setting the case down for pleading,, hearing, or trial.” Friedberger v. Stulpnagel, 59 Misc. Rep. 498, 112 N. Y. Supp. 89, 92., In the same case (59 Misc. Rep. 498, 112 N. Y. Supp., at page 95) are suggested two remedies for a defendant over whom the court had. acquired no jurisdiction, viz., an appeal from the judgment under section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580), or an application to the court below under section 253. The appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.

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MacLEAN, J.

The plaintiff appeals from an order of the court below “vacating and setting aside the judgment herein and dismissing the above-entitled action.” The order is void, and is not appealable. The court exceeded its jurisdictional powers. “The Appellate Term has frequently decided that the construction to be given section 253 Municipal Court Act (Laws 1902, p. 1562, c. 580), is .not that it gives the court power to vacate and set aside a judgment and dismiss the action, but that a judgment can only be vacated when a default is opened, and the order opening the default must contain a provision setting the case down for pleading,, hearing, or trial.” Friedberger v. Stulpnagel, 59 Misc. Rep. 498, 112 N. Y. Supp. 89, 92., In the same case (59 Misc. Rep. 498, 112 N. Y. Supp., at page 95) are suggested two remedies for a defendant over whom the court had. acquired no jurisdiction, viz., an appeal from the judgment under section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580), or an application to the court below under section 253. The appeal must therefore be dismissed.

Appeal dismissed, with $10 costs. All concur.

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Bluebook (online)

115 N.Y.S. 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasker-v-guterman-nyappterm-1909.

Opinion

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