Cooper v. Cooper

94 N.Y.S. 814 | N.Y. App. Div. | 1905

Williams, J. :

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

This appeal involves the question of the power of the County Court to set aside a judgment of the City Court, and direct a new trial, when more than twenty days have elapsed since the judgment was rendered. The power is claimed to exist under and by virtue of the provisions of the city, charter (Laws of 1879, chap. 53, as amd. by Laws of 1880, chap. 232). Section 63, as so amended, gives the City Court power to open defaults and set aside judgments where the defendants fail to appear, and the judgment is rendered upon default, but provides that the application shall be made within twenty days from the entry of the judgment, and then the same section provides : “ Where a transcript of a judgment of said City Court shall have been filed in a case provided for in this section, the County Court of Cayuga county shall have power and authority to open the default and set aside such judgment and all proceedings thereon, and to order a new trial in said City Court upon such terms as may be just.” - '

The section further provides: “ The practice in said County Court upon such application shall be the same as is herein provided for like proceedings in said City Court, except that the defendant must show that prior to the filing of such transcript no application was made to the City Court for like relief,” etc.

In this case the judgment was entered December 23, 1904. A transcript was filed the same day. The application, was made to the County Court February TO, 1905,forty-five days after the entry of the judgment. Was the application made after twenty days too late % The scheme of the section appears to be to limit these applications to twenty days wherever the same may be made. If no transcript has been filed, when the defendant desires to make the application it must be made in the City Court. If a transcript has been filed, the application can only be made in the County Court. Ho reason is apparent why the Legislature should have intended to extend the time for making the application in case of the filing of a transcript. Such intention is not indicated by any words in the statute. The provision is general that the practice upon such an application shall be the same in County as in City Court.

Suppose the transcript is filed twenty-one days after the entry of the judgment, can the application be .thereafter made in County Court, though barred in City Court ? Can it be that a judgment after twenty days from its entry is unassailable, so long as no transcript is filed, but as soon as the filing takes place the judgment may be attacked and set aside ? Such a construction of the statute would be unreasonable, and should not, therefore, be made.

It cannot, with good reason, be claimed that the County Court had any power outside this section.63 of the charter (as amd. supra) to make the order appealed from. We have nothing to do with the justice or injustice of the judgment, unless the County Court had power to grant the relief it did. The defendant had twenty days after the entry of the judgment to protect himself against any wrong or injustice done him. Beyond that the law afforded him no relief. • '

The order was unauthorized, and should be reversed as already suggested.

All concurred.

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