Mooney v. McGuirk

Appellate Terms of the Supreme Court of New York

Mooney v. McGuirk

31 Misc. 744, 64 N.Y.S. 41

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1900

StatusPublished

This text of 31 Misc. 744 (Mooney v. McGuirk) 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

Mooney v. McGuirk, 31 Misc. 744, 64 N.Y.S. 41 (N.Y. Ct. App. 1900).

Pincite

Opinion

O’Gorman, J.

The validity of the final order is assailed by reason of the omission in the record of a certificate showing that the person who served the precept was duly authorized so to do by the justice. The objection, however, is not well taken. In such a case it will be presumed, where the contrary does not appear, that the justice gave the requisite authority to the process server. Hess v. Smith, 16 Misc. Rep. 55. The order, therefore, cannot be impeached for want of jurisdiction.

The justice erred, however, in assuming that the court was without power to entertain the tenant’s motion to open the default. Although it was decided in Cochran v. Reich, 20 Misc. Rep. 593, that a justice of the District Court had no power to open a default in summary proceedings, this is no longer the law. Hnder the statute as amended (Laws of 1896, chap. 748), such power may be exercised by a justice of the Municipal Court. As there is no appeal, however, from the order of the Municipal Court denying the motion, we cannot reverse for the error complained of. Sin[745]*745sheimer v. N. Y. C. & H. R. R. R. Co., 21 Misc. Rep. 46; Boyd v. Milone, 24 Misc. Rep. 734.

The appeal from the order denying tenant’s motion to open the default is dismissed, and the final order in the proceeding, affirmed, with costs.

Beekman, P. J., and Giegerioh, J., concur.

Appeal dismissed and final order affirmed, with costs.

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O’Gorman, J.

The validity of the final order is assailed by reason of the omission in the record of a certificate showing that the person who served the precept was duly authorized so to do by the justice. The objection, however, is not well taken. In such a case it will be presumed, where the contrary does not appear, that the justice gave the requisite authority to the process server. Hess v. Smith, 16 Misc. Rep. 55. The order, therefore, cannot be impeached for want of jurisdiction.

The justice erred, however, in assuming that the court was without power to entertain the tenant’s motion to open the default. Although it was decided in Cochran v. Reich, 20 Misc. Rep. 593, that a justice of the District Court had no power to open a default in summary proceedings, this is no longer the law. Hnder the statute as amended (Laws of 1896, chap. 748), such power may be exercised by a justice of the Municipal Court. As there is no appeal, however, from the order of the Municipal Court denying the motion, we cannot reverse for the error complained of. Sin[745]*745sheimer v. N. Y. C. & H. R. R. R. Co., 21 Misc. Rep. 46; Boyd v. Milone, 24 Misc. Rep. 734.

The appeal from the order denying tenant’s motion to open the default is dismissed, and the final order in the proceeding, affirmed, with costs.

Beekman, P. J., and Giegerioh, J., concur.

Appeal dismissed and final order affirmed, with costs.

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Bluebook (online)

31 Misc. 744, 64 N.Y.S. 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mooney-v-mcguirk-nyappterm-1900.

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