Zimmerman v. Rau

81 Misc. 203, 142 N.Y.S. 467

• Court: New York Supreme Court
• Decided: June 15, 1913
• Status: Published

Opinion

Per Curiam.

Plaintiff obtained a judgment against the defendant on March 24, 1912. On April 14, 1913, upon an affidavit made by the defendant, an order to show cause was granted returnable on April 17, 1913, and upon the twentieth day of April the judgment was vacated and set aside. The opposing affidavit sets forth that more than twenty days have elapsed after the judgment was entered and before the motion was made. A motion to open a default and to- vacate a judgment and set a case down for hearing, etc., may, under section 253 of the Municipal Court Act, be made at any time; but the power of a Municipal Court justice to set aside a judgment, under section 264 of the Municipal Court Act, is limited to an application to be made within five days after the judgment is entered and upon a notice of at least two days. The court below was without jurisdiction to make the order appealed from. If, as claimed by the respondent, the judgment was void, his remedy was by an appeal therefrom, or, as pointed out by him in his brief, he may resist it and assert its invalidity at any time. Hall v. United States Ref. Co., 31 Hun, 609; Ferguson v. Crawford, 70 N. Y. 256.

Present: Seabury, Page and Bijub, JJ.

Order reversed, with costs, and judgment reinstated.