101 N.Y.S. 72 | N.Y. App. Term. | 1906
This is an appeal from an order vacating a judgment of the Municipal Court. The facts in the case are substantially undisputed. It appears that the pleadings were verified. Upon the day of trial the parties appeared and by their respective attorneys made certain admissions. Certain claims set forth in the complaint were admitted and a contract between the parties, the basis of the cause of action, was also admitted as evidence by consent. These several admissions raised an issue of law, and the case was submitted to the court on November 28, 1905. Judgment in favor of the defendant was thereafter rendered .for costs and dismissing the complaint,, without prejudice to a new trial, on January 27, 1906. A motion to vacate said judgment was made by plaintiff on the 15th day of February, 1906. The grounds for vacating said judgment urged by the plaintiff were that a stipulation had been entered into between the respective attorneys at the time the parties met for trial to the effect that, if the court should hold that the plaintiff could not recover, as a matter of law, upon the conceded facts submitted, then the case should be sent for trial on the issues of fact to another judge; that the court therefore erroneously entered a judgment as aforesaid. The
Title 3 of chapter 11 makes provision for vacating or set- . ting aside judgments for irregularity or error in fact, but by subdivision 8 of section 3347 the provisions of the whole of title 3 of chapter 11 apply only to the Supreme Court, the City Court of New York, or a Cpunty Court. It seems that there is no provision in the Municipal Court Act whereby a judgment may he vacated by an order in that court upon the ground of irregularity or error in fact, nor is there any section of the Code of Civil Procedure whose provisions can be held to apply to such a case¡
Gildersleeve and Dugro, JJ., concur.
Order reversed, with costs.