Buchsbaum v. Feldman

43 Misc. 85 | N.Y. App. Term. | 1904

Freedman, P. J.

This action was tried on October 29, 1903, and resulted in a judgment dismissing the complaint. On November 4, 1903, the preceding day being a holiday, a notice of motion was served upon defendants’ attorney by the plaintiff’s attorney, returnable on November sixth, eight days after judgment was rendered, for an order to vacate and set aside said judgment and to grant a new trial. The only paper served was the notice of motion which states “ that upon the minutes, case and exceptions * * * the undersigned will move the court * * * for a new trial of the above entitled action and for an order directing’ that the dismissal had on the 29th day of October, 1903, be vacated, set aside, and that the cause be restored to the calendar.” This motion was granted, and from the order granting the same this appeal is taken. Under section 257 of the Municipal Court Act such an order is appealable. Section 254 of that act provides that such a motion may be made “upon exceptions taken at the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law, provided said motion is made at the close of the trial or within five days from the time the judgment was rendered and in the latter case at least two days notice of said motion is given.”

The moving papers in this case do not specify any grounds for granting the relief sought nor was the " motion made ” within the five days. It is clear that the section contemplates that the motion must be made promptly. If made at the close of the trial no notice is needed, for all parties are presumably there present and can be heard. If it is desired to be made thereafter it must be made within the five days prescribed and two days’ notice thereof must be given. Had the Legislature intended that the notice of motion might be given within the five days the clause “ in the latter case (that is if not made at the close of the trial) two days notice must be given,” would not have been inserted, because unless it was the intent of the Legislature to limit the time to five days within which such motion must be made there would be no good reason for shortening the time of eight days’ notice of motion to but two days. A notice of motion is distinct from the motion itself. Giving a notice is a mere warning that an order will be applied for, and it is clear that the intent of the act was that, from, parties having ground for the relief contemplated in section 254, promptness in having their motion made, and not promptness in giving such notice, is required. If the plaintiff was only required to give his notice within five days he could make it returnable in thirty or ninety days, and while possibly a judgment creditor might move for an order shortening such time, he is without redress by appeal from an order denying his motion, should one be made, as the Municipal Court Act contains no provision for an appeal from such an order.

Under the circumstances disclosed by the record herein, the court had no jurisdiction to grant the order appealed from and it must be reversed.

Giegebich and McCall, JJ., concur.

Order reversed, with costs.