143 Misc. 164 | N.Y. App. Term. | 1932
In this case a marshal attempted to make a levy as upon judgment entered, and to. bring the motion within the scope of subdivision 4 of section 154 of the Municipal Court Code, so as to make the order below appealable, defendant was not required to await the actual entry of judgment before moving to open his alleged default.
The provision in subdivision 2 of section 129 of the statute that upon granting a motion to open a default and to vacate a judgment entered thereon “ the court must set the case down for trial ” is inapplicable to this case, wherein issue had not been joined and no facts tending to show the propriety of setting the case down for trial are presented.
Order so far as appealed from reversed, with ten dollars costs to abide the event.
All concur; present, Lydon, Frankenthaler and Untermyer, JJ.
