Reed Realty Co. v. Rau

159 N.Y.S. 859

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 26, 1916
• Status: Published

Opinion

PER CURIAM.

A judgment was entered against the defendant upon an inquest. A motion to vacate and set aside the judgment upon the ground of nonservice of process was first made by the defendant, and denied, after the court below had heard the oral testimony of the process server. The defendant then moved to open the default, and to be permitted to file an answer and go to trial. This was denied, apparently and mainly upon the ground, now strenuously urged upon this appeal, that the power of the court below to grant the relief asked for by the second motion had been exhausted by reason of the first.

In this the court below erred. The motions are entirely separate and distinct, and founded upon a different basis, and are provided for in the Municipal Court Code in section 129, subdivisions 1 and 2. A motion to vacate a judgment for nonservice of process is made as a matter of right, and if no process has been served the judgment is absolutely void, and must be reversed, vacated, and set aside. There is no question of default in the matter. The granting of a motion to open a default rests within the sound discretion of the justice who hears the motion, and terms may be imposed, and, although the judgment may be vacated, it is for the purpose of ordering a new trial only. The cases cited by the respondent refer to the making of a second motion, based upon the same grounds and asking for the same relief as a former one, and have no application to the situation in the present case.

Order reversed, motion to open default granted, and a new trial ordered, with $10 costs to appellant to abide the event.