Wolchock v. Tombarelli

Appellate Terms of the Supreme Court of New York

Decided November 15, 1900

Appellate Terms of the Supreme Court of New York · decided 1900-11-15

<p>Municipal Court of the city of New York — Form of order opening default and setting aside judgment.</p> <p>An order, vacating absolutely a judgment taken against the plaintiff by default and which does not set the case down for pleading, hearing or trial, is unauthorized in the Municipal Court of the city of New York.</p>

Relies on Worthington v. London Guarantee & Accident Co.

Decided 1900-11-15

Per Curiam.

¶1The order appealed from, which vacated and set aside a judgment against the plaintiff absolutely, omitted to set the case down for pleading, hearing or trial. Such an order is unauthorized in the Municipal Court. Gormully & Jeffery Mfg. Co. v. Catharine, 25 Misc. Rep. 338. The reason given by the justice for making the order, to-wit, that the defendant was not a resident of the county, is not sufficient. Worthington v. London, etc., Company, 164 N. Y. 81.

¶2The order appealed from must be reversed, with ten dollars costs to appellant.

¶3Present: Truax, P. J.; Scott and Dugro, JJ.

¶4Order reversed, with ten dollars costs to appellant.