Weichert v. Kirnie

16 A.D.2d 744, 227 N.Y.S.2d 236, 1962 N.Y. App. Div. LEXIS 10401

Opinion

—Order unanimously reversed and motion addressed to the County Court to open the defendant’s default denied, without prejudice to the making of a motion in the Police Justice Court; the transcript of the judgment filed with the County Clerk vacated, and all proceedings on the part of the plaintiff to enforce the judgment stayed pending the making and determination of such a motion, provided that it is made within 20 days after the entry of the order herein, all without costs. Memorandum: The circumstances plainly warranted the opening of the defendant’s default, but the motion to open the default should have been made in the Police Justice Court and not in the County Court (Quackenbush v. Johnston, 249 App. Div. 452). However, the plaintiff should be stayed from taking any proceedings to enforce the judgment pending the making of a motion to open the default in the Police Justice Court. (Appeal by plaintiff from order of Special Term of Onondaga County Court granting motion of defendant to set aside a default judgment and granting leave to answer.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.