Maggio v. Ocean View Cemetery

47 Misc. 680, 94 N.Y.S. 595

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1905
• Status: Published

Opinion

MacLean, J.

The plaintiff, as assignee, sought to recover wages upon a contract for work, labor and services performed, and damages for a breach. From the judgment rendered in favor of the defendants the plaintiff appeals, and, among other objections, raises the question of jurisdiction of the court below to render this judgment. The return made by the clerk recites that the cause was tried on February 28, 1905, as also that the summons was issued on October 8, 1905. Where there is palpable mistake, the record must prevail, and the record herein discloses that the case was closed and decision reserved on January 30, 1905, and that thereafter there was no legal stipulation entered into between the parties to extend the time of the trial justice within which to render judgment. All that appears is that the attorney for the defendants alone stipulated first to extend the time to February twenty-eighth and later to March tenth, while by letter, attached to the record and dated February eleventh, the attorney for the plaintiff expressly requested the trial justice to render judgment within the statutory time. The judgment having been rendered on March 8, 1905, was not within the time fixed by section 230 of the Municipal Court Act, and so void. Lambert v. Salomon, 28 Misc. Rep. 562.

Judgment reversed, with costs to the appellant.

Scott and Dugro, JJ., concur.

Judgment reversed, with costs.