Murphy v. Wilson

Appellate Terms of the Supreme Court of New York

Murphy v. Wilson

151 N.Y.S. 900

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 4, 1915

StatusPublished

This text of 151 N.Y.S. 900 (Murphy v. Wilson) 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

Murphy v. Wilson, 151 N.Y.S. 900 (N.Y. Ct. App. 1915).

Pincite

Opinion

GUY, J.

[1] Much of the appellant’s brief is devoted to showing that the summons served upon him was not signed by the clerk •of the Municipal Court, but by another person. It clearly appears, however, that he was represented in court upon the return day of the summons and that his attorney had arranged with the plaintiff’s attorney to have the cause adjourned for trial from December 11th to December 18th. This voluntary appearance waived any defect in the summons served, and conferred jurisdiction upon the court below. The order appealed from provided that the judgment be vacated and set aside, and the case set for trial upon January 4th, upon condition that the defendant “filed a good and sufficient bond in the sum of the judgment herein otherwise the motion is denied.”

[2] It appears from the papers used upon the motion resulting in the order appealed from that on December 11, 1914, the-return day of the summons, the case was adjourned by consent until December 18, 1914; the understanding between the attorneys being that the defendant should file his answer on December 14th. Upon December 14th the plaintiff’s attorney ascertained from the clerk of the court that no answer had been filed, and. on December 15, 1914, entered judgment against the defendant by default. The cause having been adjourned until December 18th, the action remained in statu quo until that day, and no valid judgment could be entered against defendant in the interim, even if no answer was filed. Whitman & Barnes Mfg. Co. v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760.

It is true that an attorney representing the plaintiff’s attorney makes an affidavit used upon the motion, in which he says that the adjournment was granted upon condition that defendant file his answer on or before December 14, 1914; “otherwise, judgment to be entered on the complaint herein.” No written stipulation was entered into of that character, and if an oral understanding to that effect was made it conferred no authority upon the court to enter a judgment, when [902]*902its functions had been suspended by an adjournment regularly granted until December 18th. Defendant’s default should therefore have been opened without terms.

Order reversed, judgment vacated, and new trial ordered, with costs to the appellant to abide the event. All concur.

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GUY, J.

[1] Much of the appellant’s brief is devoted to showing that the summons served upon him was not signed by the clerk •of the Municipal Court, but by another person. It clearly appears, however, that he was represented in court upon the return day of the summons and that his attorney had arranged with the plaintiff’s attorney to have the cause adjourned for trial from December 11th to December 18th. This voluntary appearance waived any defect in the summons served, and conferred jurisdiction upon the court below. The order appealed from provided that the judgment be vacated and set aside, and the case set for trial upon January 4th, upon condition that the defendant “filed a good and sufficient bond in the sum of the judgment herein otherwise the motion is denied.”

[2] It appears from the papers used upon the motion resulting in the order appealed from that on December 11, 1914, the-return day of the summons, the case was adjourned by consent until December 18, 1914; the understanding between the attorneys being that the defendant should file his answer on December 14th. Upon December 14th the plaintiff’s attorney ascertained from the clerk of the court that no answer had been filed, and. on December 15, 1914, entered judgment against the defendant by default. The cause having been adjourned until December 18th, the action remained in statu quo until that day, and no valid judgment could be entered against defendant in the interim, even if no answer was filed. Whitman & Barnes Mfg. Co. v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760.

It is true that an attorney representing the plaintiff’s attorney makes an affidavit used upon the motion, in which he says that the adjournment was granted upon condition that defendant file his answer on or before December 14, 1914; “otherwise, judgment to be entered on the complaint herein.” No written stipulation was entered into of that character, and if an oral understanding to that effect was made it conferred no authority upon the court to enter a judgment, when [902]*902its functions had been suspended by an adjournment regularly granted until December 18th. Defendant’s default should therefore have been opened without terms.

Order reversed, judgment vacated, and new trial ordered, with costs to the appellant to abide the event. All concur.

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151 N.Y.S. 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-wilson-nyappterm-1915.

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