Blackman v. Iron Clad Manufacturing Co. , 122 N.Y.S. 619 ( 1910 )

Jenks, J.:

The defendant appeals from an order of the Municipal Court that denied its motion to vacate a judgment entered against it by ■default. The ground.of the motion was. jurisdictional, in that the defendant was not served with process, and that the alleged appearance in this action, of its general attorney was a fraud, if not a for-, gery. The appellant would have us regard this appeal as from an order refusing to open its default. But the application for the order to show cause, that order, the avowed contention of counsel at the time of the application, and the order entered upon the motion, all indicate plainly that the remedy sought was vacation of the judgment. The judgment was .entered'in 1905, and but a few days intervened the entry thereof and this application. The justice who presided in the court at the time the motion was .made overlooked the motion, and did.not decide it until December 31, 1909, when it was denied “for want.of power.” If this decision had been made prior to September 1, 1907, there was authority for it (Diehl v. Steele, 49 Misc. Rep. 456), and the remedy of the defendant, as pointed out in that case, would have beerf found in section 311 of the Municipal Court Act; But on September 1, 1907, section 253 was amended (Laws of 1907, chap. 304) so that at the time this decision was made the court or a justice thereof, in a district in which a judgment is taken without the service of a summons or of process as required by law, could have vacated the judgment, and have afforded the further appropriate relief, for this amendment but affected the remedy, and was, therefore, applicable to the case at bar when the court came to decide it. (Matter of Davis, 149 N. Y. 539 ; Southwick v. Southwick, 49 id. 510 ; Ryan v. Waule, 63 id. 57; Lazarus v. M. E. R. Co., 145 id. 585 ; Peace v. Wilson, 186 id. 403.)

The order is reversed, with ten dollars costs and disbursements, and the motion is remitted to the Municipal Court for hearing upon the merits thereof.

Buten, Thomas, Rich and Carr, J J., concurred.

Order of the Municipal Court reversed, with ten dollars costs and disbursements, and motion remitted to said court for hearing upon the merits thereof.