Tower Sales Corp. v. Byrd

New York Supreme Court

Tower Sales Corp. v. Byrd

46 Misc. 2d 1041, 261 N.Y.S.2d 832, 1965 N.Y. Misc. LEXIS 1785

CourtNew York Supreme Court

DecidedJune 14, 1965

StatusPublished

Cited by2 cases

This text of 46 Misc. 2d 1041 (Tower Sales Corp. v. Byrd) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tower Sales Corp. v. Byrd, 46 Misc. 2d 1041, 261 N.Y.S.2d 832, 1965 N.Y. Misc. LEXIS 1785 (N.Y. Super. Ct. 1965).

Pincite

Opinion

Joseph F. Hawkins, J.

Defendant seeks to vacate a default judgment entered against him on the 30th day of March, 1965, in the City Court of Yonkers. In the alternative, he seeks to have the judgment opened so as to permit an answer or otherwise to move against the complaint. A transcript of the City Court judgment was filed in the office of the Clerk of Westchester County on April 8, 1965. The defendant’s contention is that he was not served with the summons and that he has a meritorious defense to the action.

[1042]*1042CPLR 5018 (subd. [a]) provides for the filing of a transcript of the docket of a judgment of a City Court with the Clerk of the county in which the judgment was entered: “ A judgment docketed by transcript under this subdivision shall have the same effect as a docketed judgment entered in the supreme court within the county where it is docketed.” The filing of the transcript does not make the judgment a County or Supreme Court judgment (Gilmore v. DeWitt, 256 App. Div. 1046). The judgment becomes a mere statutory judgment of the County Court (Quackenbush v. Johnston, 249 App. Div. 452). The judgment is not one over which the Supreme Court has power to relieve a default. Defendant must press his motion before the Yonkers City Court.

Motion denied without prejudice to the renewal thereof in the proper court.

Free access — add to your briefcase to read the full text and ask questions with AI

Joseph F. Hawkins, J.

Defendant seeks to vacate a default judgment entered against him on the 30th day of March, 1965, in the City Court of Yonkers. In the alternative, he seeks to have the judgment opened so as to permit an answer or otherwise to move against the complaint. A transcript of the City Court judgment was filed in the office of the Clerk of Westchester County on April 8, 1965. The defendant’s contention is that he was not served with the summons and that he has a meritorious defense to the action.

[1042]*1042CPLR 5018 (subd. [a]) provides for the filing of a transcript of the docket of a judgment of a City Court with the Clerk of the county in which the judgment was entered: “ A judgment docketed by transcript under this subdivision shall have the same effect as a docketed judgment entered in the supreme court within the county where it is docketed.” The filing of the transcript does not make the judgment a County or Supreme Court judgment (Gilmore v. DeWitt, 256 App. Div. 1046). The judgment becomes a mere statutory judgment of the County Court (Quackenbush v. Johnston, 249 App. Div. 452). The judgment is not one over which the Supreme Court has power to relieve a default. Defendant must press his motion before the Yonkers City Court.

Motion denied without prejudice to the renewal thereof in the proper court.

Cite This Page — Counsel Stack

Bluebook (online)

46 Misc. 2d 1041, 261 N.Y.S.2d 832, 1965 N.Y. Misc. LEXIS 1785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-sales-corp-v-byrd-nysupct-1965.

Opinion

Related

Cite This Page — Counsel Stack