84 N.Y.S. 930 | N.Y. App. Term. | 1903
The plaintiff sued defendant in the Municipal Court to recover the sum of $20 for work, labor, and services as a female domestic. The summons in the action was returned on the 20th day of March, 1903, and the defendant not appearing, and rib answer being interposed, judgment was taken by default for the sum mentioned. The same day, on the application of the defendant, the court made an order directing the plaintiff or her attorney to show cause why the default should not be opened. This order was returnable March 30, 1903, and provided for a stay of plaintiff’s proceedings meanwhile. The motion was heard, and on March 31, 1903, the court made an order granting the motion to open the default upon payment to the plaintiff’s attorney on or before April 1, 1903, of the sum of $5 as costs, and the trial of the action to proceed on April 3, 1903, otherwise the motion was denied, with $5 costs, and the stay-vacated. On the 3d of April, 1903, the defendant did not appear,, nor did he comply with the condition by paying the costs, and again his default was taken. On the same day another order was granted directing the plaintiff or her attorney to show cause why the second default should not be opened. On the 6th of April, 1903, the motion was argued and denied, with $5 costs. This is an appeal from the judgment entered “on April 3, 1903, for twenty dollars damages and five dollar costs, making a total of $25,” and it also declares that the defendant is subject to arrest.
The appellant claims that the order of the court opening the default was not duly entered and served upon him. We are not aware of any provision of law or practice in the Municipal Court requiring an order of a judge’s decision to be entered or served. The memorandum of the judge is usually indorsed on the papers, and when that is done it is sufficient notice of his decision. The defendant was at liberty to enter and serve an order, but, as he didn't do it, he cannot now be heard to complain that the plaintiff did not.
The appellant also claims that, the action being by a female domestic, no body execution can be executed against the defendant. Section 274 of the municipal court act (Laws 1902, p. 1569, c. 580) provides that “in an action brought in the Municipal Court by a journeyman, laborer or other employee rvhose employment answered to the general description of wage earners for services rendered or wages earned in such capacity, if the plaintiff recovers a judgment
The defendant also asks a reversal of the judgment on the ground that, a motion having been made and granted to open the default, a new inquest should have been taken, and cites Barkin v. Rosenbach, 25 Misc. Rep. 780, 55 N. Y. Supp. 628, and Farber v. Flauman, 30 Misc. Rep. 627, 62 N. Y. Supp. 784, as authorities for his proposition. Those cases differ from the case at bar, and do not apply. The latter case merely relates to costs imposed as a condition of granting an adjournment, and holds that a failure to pay them does not prevent the defendant from taking part in the trial on the adjourned day. In the former case there was an absolute vacation of the judgment upon consent of attorneys, who announced themselves ready to go to trial; no condition whatever was imposed for opening the default and setting aside the judgment. In the case at bar the opening of the judgment was conditional upon the payment of costs.
The judgment must be affirmed, with costs. All concur.
