122 Misc. 500 | New York County Court, Erie County | 1924
On July 2, 1923, plaintiff obtained a judgment, by default, in the City Court of Buffalo against the defendant Norman A. Chassin only, for twenty-nine dollars and forty-two cents, filed a transcript in Erie county clerk’s office and issued an execution to the sheriff of Erie county. On July 26, 1923, said defendant moved in this court to have said default opened and for leave to defend. The motion was granted, and an order to that effect entered. The attorney for plaintiff now moves to vacate and set aside said order on the ground that the court did not have power to grant it. The motion should be granted.
What court has the power to open such a default? This is a puzzling question to many practitioners in this jurisdiction. The City Court Act (Laws of 1909, chap. 570, as amd.) gives this court ample authority for the proper conduct of its business. Under section 20, subdivision 18, the court has power “ to open defaults, to vacate, set aside, modify or correct judgments or final orders rendered in said court, or executions or warrants issued thereon, including a case in which a transcript of the judgment has been filed in the county clerk’s office.” A transcript of judgment “ may be filed and docketed in the office of the clerk of Erie county; * * * the time of the receipt of the transcript by said last named clerk shall be noted thereon and entered in his docket, and from that time the judgment shall be a judgment of the county court.” § 40. “ Appeals in civil causes may be had from judgments of said court or final orders, or orders affecting a substantial right to the supreme court, Erie county, * * * ” § 55.
“ A judgment of conviction * * * may be reviewed by the county court of the county as prescribed in title three, part five of the code of criminal procedure. * * § 76.
Section 20, subdivision 18, supra, clearly shows where the application to open a default should be made. The confusion is probably
All acts establishing courts of limited jurisdiction are much alike theoretically, and decisions construing an act are, by anology at least, authority for a like construction of similar acts. It has generally been held that a County Court has no authority to open a default judgment taken in a Justice Court, unless an appeal has been taken. Baker R. & L. Co., Inc., v. Buel, supra; Albertson v. Behrend Mfg. Co., 47 App. Div. 232; Bennett v. Cole, 173 id. 521; Civ. Prac. Act, § 426. The reason for this is admirably stated in Martin v. Mayor, etc., supra, as follows (p. 299): “ When we open one of our own judgments, the case continues in this court, and we have control over it until it is again finally disposed of. Upon setting aside a judgment, the parties are placed in the position in which they were before the judgment was recovered; but if a judgment transferred to this court by the filing of a transcript is set aside, there is nothing more remaining in this court. The judgment of the court below still stands; and the Legislature have not indicated how, or in what way, the cause could be heard again.” This is exactly the position of the defendant in this action. The County Court has no power to consider an appeal in a civil case, because that power is given to the Supreme Court by the City Court Act. The only power- that the County Court has is in relation to the enforcement of the judgment after the transcript is filed.
It follows that all applications to open default, or other judgments, after a transcript has been filed in the county clerk’s office, should be made directly to the City Court under section 20, subdivision 18, of the City Court Act and the rules of the court. The City Court also has power under section 46 to properly control any situation not provided for in section 20, subdivision 18.
Motion granted, and an order may be entered accordingly.
Ordered accordingly.
