Van Orsdale v. Genesee Valley Garage, Inc.

150 Misc. 655, 270 N.Y.S. 892, 1934 N.Y. Misc. LEXIS 1226

• Court: New York County Courts
• Decided: February 26, 1934
• Status: Published

Opinion

Wheeler, J.

This is an application for an order vacating and setting aside a judgment granted November 4, 1933, by H. Frank Van Tyne, a justice of the peace of the town of Leicester, in favor of the plaintiff and against the defendant.

It is conceded that no appeal was taken by the defendant from this judgment as required by section 428 of the Justice Court Act.

The affidavits upon which this application is based disclose among other things that the defendant did not learn of the entry of judgment in time to perfect an appeal.

The plaintiff appears specially on this application and asks that the motion be dismissed, urging that the court has no jurisdiction to entertain the same.

The time to appeal commences from the date of the entry of judgment in the docket book of the justice of the peace. There is nothing in the Justice Court Act which requires notice of entry of judgment and the justice is under no legal duty to notify the attorneys. It apparently is the duty of the attorney to watch the justice’s docket if he desires to appeal. (Beiser v. Weiner, 144 Misc. 94.)

The jurisdiction of this court is limited to entertaining an appeal as provided in section 428 of the Justice Court Act. There is no such appeal pending.

The motion, therefore, to set aside the judgment entered November 4, 1933, by H. Frank Van Tyne, a justice of the peace, is denied on the ground that the County Court in the absence of an appeal is without power to set aside this judgment. (Justice Ct. Act, § 426; Broga v. Seelye, 229 App. Div. 747; Lowry v. Himmler, 136 Misc. 215; East Syracuse Motor Car Co. v. Tuttle, 230 App. Div. 872.)

The defendant may have relief by an action in equity, but this court is not passing upon that question. {Broga v. Seelye, supra.)

The motion to dismiss should be granted, without costs.

Submit order accordingly.