112 N.Y.S. 89 | N.Y. App. Term. | 1908
In the original summons, issued in this action, the words and figures “ 128 Prince Street,” which were intended to designate the location of the court-house in the first district, Municipal Court, were stricken out and the words “66 Lafayette Street ” written over them in ink. The copy of the summons which was served upon the defendant also had the words “ 128 Prince Street ” stricken out, without any designation or mention of the street, or mention of the court-house. The defendant failed to appear upon the return day and a judgment was taken against her
Section 253 of the Municipal Court Act was, as stated by the commissioners of revision, “ taken from the first part of section 1367 of the Consolidation Act and applies only to defaults.” The section is headed “ Court may open default;” "and the language giving power to the court, and directing the manner in which the case must be disposed of when a default is opened, is precisely the same as was contained in the Consolidation Act, section 1367. The Appellate Term has frequently decided that the construction to be given section 253 is not that it .gives the court power to vacate and set aside a judgment and dismiss the action> but that a judgment can only be vacated when a default is opened, and the order opening the default must contain a provision setting the case down for pleading, hearing or trial (Diehl v. Steele, 49 Misc. Rep. 457; Altieri v. Trotta, 53 id. 649; Barron v. Feist, 51 id. 589), and that such an order was “ an essential condition in opening a default.” Spiropulos v. Magnioni, 49 Misc. Rep. 90. This construction is in accordance with the decisions of all superior courts when called upon to define the powers of courts of statutory creation; the rule being to strictly limit the power of an inferior court to the exact literal meaning of the words used in a statute, holding them to the precise limits of jurisdiction prescribed by law, but to be liberal in reviewing their proceedings. Crawford v. Reed, 1 Johns Cas. 20; Handshaw v. Arthur, 9 App, Div. 175; affd, 161 N. Y. 664. If, then, section 253 remained the same as originally enacted, we should have no difficulty in disposing of this case. The section as amended reads as follows, the underscored
Present: Gildersleeve, Giegerich and Greenbaum, JJ.
Appeal dismissed, with ten dollars costs.