Tilney v. Gerner

Appellate Division of the Supreme Court of New York

Tilney v. Gerner

247 A.D. 859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1936

StatusPublished

This text of 247 A.D. 859 (Tilney v. Gerner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tilney v. Gerner, 247 A.D. 859 (N.Y. Ct. App. 1936).

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Opinion

Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Memorandum: In February, 1935, a money judgment was rendered against defendant on his default. He did not move to open the default and for leave to defend but made a motion to set aside the judgment and dismiss the complaint based upon affidavits asserting that in May, 1935, the law upon which the judgment against him was founded had been declared unconstitutional by the United States Supreme Court. The trial court granted the motion and the order appealed from adjudicated that the judgment be canceled of record. This and nothing more. We find no authority in law or in the practice of the court for such a determination on behalf of a defaulting defendant. All concur. (The order denies a motion to vacate judgment and dismiss complaint.) Present — Taylor, Edgcomb, Thompson, Crosby and Lewis, JJ.

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Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Memorandum: In February, 1935, a money judgment was rendered against defendant on his default. He did not move to open the default and for leave to defend but made a motion to set aside the judgment and dismiss the complaint based upon affidavits asserting that in May, 1935, the law upon which the judgment against him was founded had been declared unconstitutional by the United States Supreme Court. The trial court granted the motion and the order appealed from adjudicated that the judgment be canceled of record. This and nothing more. We find no authority in law or in the practice of the court for such a determination on behalf of a defaulting defendant. All concur. (The order denies a motion to vacate judgment and dismiss complaint.) Present — Taylor, Edgcomb, Thompson, Crosby and Lewis, JJ.

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Bluebook (online)

247 A.D. 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tilney-v-gerner-nyappdiv-1936.