Baptist Mission Society v. Tabernacle Baptist Church

41 N.Y.S. 976 | N.Y. App. Div. | 1896

Ingraham, J.:

There is no question as to the power of the court to vacate any of its judgments upon a proper state of facts. The question before us is whether the order of the court below vacating the entry of this judgment was proper under the circumstances here disclosed. Rule 19 of the General Rules of Practice provides that every judgment exceeding two folios in length shall be distinctly numbered and marked at each folio in the margin thereof; and the entry of the judgment in this case by the Special Term was a violation of this rule. This, however, was a mere irregularity; and the judgment, having been entered, was a valid judgment until set aside or vacated by the court. Section 721 of the Code then applies. Under the provisions of that section the judgment was not affected or impaired by reason of an informality in the entry of the judgment or in making up the judgment roll, or for any fault or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party had not been prejudiced. This valid subsisting judgment should, therefoi'e, be vacated or set aside by an order of the court only upon its appearing that there was a fault or neglect on the part of some officer of the court, or of a party, his attorney or counsel, by which the adverse party had been prejudiced. It was necessary to show that the moving party had been in some way prejudiced by the failure of the officers of the court, or the attorney for the adverse party, to comply with some regulation which had rendered the judgment irregular. In that we think that the moving party has failed. No attempt is made to show that the failure to folio the judgment has in any way prejudiced the moving party. It is a mere irregularity which in this case has harmed no one; and it is clear that, save for the fact that the respondent allowed the time to appeal to expire, and under the guise of this motion has attempted to acquire a right to appeal after the time therefor has expired, in violation of the express provisions of the Code, no attempt would have been made to obtain the vacation of this judgment. It appeared, however, that the respondent had lost the right to appeal by failing to serve its notice of appeal in time ; and that this is a serious prejudice we assume. But this failure to appeal was not in any way caused by the irregularity complained of, and that irregularity did not in any way prejudice the respondent. Section 784 of the Code is explicit. Neither the court nor judge has authority to extend the time fixed bylaw within which an appeal can be taken; nor can a court or a judge allow either of those acts to be done after the expiration of the time fixed by law, except in a case specified in the next section, which does not apply to the case at bar. We have thus an application to the court to violate an express provision of law and give to this respondent a right which i-t has lost by reason of its own neglect, and which section 721 of the Code expressly says we shall not give because of an irregularity which has not prejudiced him.

We think, therefore, that to grant this motion would be an express violation of the provisions of the Code and an exercise of a power unauthorized by law.

The order ajipealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion below denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.