Baker R. & L. Co. v. Buel

188 A.D. 822 | N.Y. App. Div. | 1919

Per Curiam:

What is the power of the County Court to set aside and vacate a justice’s judgment, when there has been no notice of appeal? The Code of Civil Procedure, section 3044, declares: “ The only mode of reviewing a judgment, rendered by a justice of the peace in a civil action, is by an appeal, as prescribed in this title.”

Section 3064 of the Code of Civil Procedure comes from section 366 of the former Code of Procedure. Both sections refer to proceedings upon an appeal.

In the Revised Statutes, the provision was that after docketing the judgment with the county clerk, the clerk should issue executions “ under the seal of the Court of Common Pleas of the county; and the power and authority of the justice, in respect to such judgment, shall cease.” (2 R. S. 254, § 164; R. S. pt. 3, chap. 2, tit. 4, § 164.) It was also provided that the Court of Common Pleas “ shall have the same power to amend every such execution, and to control the same in all respects, with the like authority as if it had been issued upon a judgment rendered in such court.” (Id. § 166.)

The former Code of Procedure, section 68, repeated this provision, that a judgment so docketed “ shall have the same effect as a lien and be enforced in the same manner as, and be deemed, a judgment of the Court of Common Pleas.”

In 1860, regarding a Marine Court judgment thus docketed, it was held that the words “ and be deemed,” introduced by the amendment of 1851 (Chap. 479), are not to be understood as giving the Court of Common Pleas the power of allowing a party to come in and defend, or to set a judgment aside. (Martin v. The Mayor, 11 Abb. Pr. 295; affd., 12 id. 243; 20 How. Pr. 86.)

Likewise where defendant failed to appear in the Municipal Court of Rochester, so that a default judgment was there entered, but he took his appeal the next day to the County Court where a transcript had been filed, the motion to open the default under Code of Civil Procedure, section 3064, could be made thereafter, as the notice of appeal had conferred on the County Court jurisdiction to entertain the motion. (Albertson v. Behrend Mfg. Co., 47 App. Div. 232 [1900]. See, also, Bennett v. Cole, 173 id. 521.) Notwithstanding certain Special Term decisions (Denovsky v. Bach, 93 Misc. Rep. 472, and Moneyweight Scale Co. v. Price, 92 id. 730), we think under Code of Civil Procedure, section 3064, the authority to open a default where it is shown “ that manifest injustice has been done ” is only granted if the defendant has appealed. This condition cannot be dispensed with. (Code Civ. Proc. § 3044; Stilwell v. Rowe, 83 Misc. Rep. 297.) As defendant here took no appeal, the learned County Court erred in the order setting aside and vacating this justice’s judgment.

The order of the Special Term of the County Court of Rockland county is, therefore, reversed, with ten dollars costs and disbursements, and defendant’s motion to open his default denied.

Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ., concurred.

Order of the Special Term of the County Court of Rockland county reversed, with ten dollars costs and disbursements, and defendant’s motion to open his default denied.