Raymond v. Keiley

Appellate Terms of the Supreme Court of New York

Raymond v. Keiley

111 N.Y.S. 244

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1908

StatusPublished

Cited by1 cases

This text of 111 N.Y.S. 244 (Raymond v. Keiley) 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

Raymond v. Keiley, 111 N.Y.S. 244 (N.Y. Ct. App. 1908).

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Opinion

PER CURIAM.

The defendant moved herein for an order vacating the judgment entered against him, and “for such other and further relief as the court might grant,” upon the ground that no process had ever been served upon him. The court granted the motion.

This was error. There is no authority given to a Municipal Court, or a justice thereof, to vacate and set aside a judgment absolutely under the circumstances disclosed in this case. See Friedberger v. Stulpnagel, 112 N. Y. Supp. 89, decided at the April term of this court. Where, however, a notice of motion asks for such other and further relief as may be just, etc., such relief may be given as the facts warrant. Thompson v. Erie Ry. Co., 45 N. Y. 476; People v. Nostrand, 46 N. Y. 377. The court below should therefore have opened the default of the defendant and set the case down for pleading.

The fact that the time to appeal from the judgment under section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580) had expired did not preclude the defendant from applying for and obtaining the relief afforded by section 253 of said act. In fact, the appellant concedes that the defendant’s only remedy is to move to open his default, which, in effect, he has done.

Order modified, by directing that the defendant’s default be opened, the judgment vacated and set aside, and the case set down for pleading, and, as modified, affirmed, without costs on this appeal to either party.

DAYTON, J., not voting.

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PER CURIAM.

The defendant moved herein for an order vacating the judgment entered against him, and “for such other and further relief as the court might grant,” upon the ground that no process had ever been served upon him. The court granted the motion.

This was error. There is no authority given to a Municipal Court, or a justice thereof, to vacate and set aside a judgment absolutely under the circumstances disclosed in this case. See Friedberger v. Stulpnagel, 112 N. Y. Supp. 89, decided at the April term of this court. Where, however, a notice of motion asks for such other and further relief as may be just, etc., such relief may be given as the facts warrant. Thompson v. Erie Ry. Co., 45 N. Y. 476; People v. Nostrand, 46 N. Y. 377. The court below should therefore have opened the default of the defendant and set the case down for pleading.

The fact that the time to appeal from the judgment under section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580) had expired did not preclude the defendant from applying for and obtaining the relief afforded by section 253 of said act. In fact, the appellant concedes that the defendant’s only remedy is to move to open his default, which, in effect, he has done.

Order modified, by directing that the defendant’s default be opened, the judgment vacated and set aside, and the case set down for pleading, and, as modified, affirmed, without costs on this appeal to either party.

DAYTON, J., not voting.

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111 N.Y.S. 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-v-keiley-nyappterm-1908.

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