39 N.Y.S. 38 | N.Y. App. Div. | 1896
The moving papers contained in the record present a case warranting the order made if the court possessed jurisdiction to make it. The papers show that after the default was taken defendant appealed from the judgment entered thereon to the County Court of Westchester county. After the appeal was taken and before any return was made therein by the justice, or before the time had expired in which the justice was required to make his return, as provided by section 3053 of the Code of Civil Procedure, defendant made a motion and obtained an order to show cause why the judgment should not be set aside and a new trial of the case ordered before the same or another justice. This motion resulted in the
In Douglass v. Reilly (8 Hun, 85) the General Term of this department held that the county judge had no power on motion to vacate a judgment; that the remedy was by appeal. There is no distinction between that case and the present, in principle. It is true that an appeal was taken in the present case, but such appeal has never been brought to a hearing and no determination has been liad thereon. The bringing of an appeal does not authorize an independent motion to vacate a judgment, any more than it is authorized without any appeal. It is the review of the judgment -which the Code contemplates, whether rendered upon the trial of issues or taken by default, and whether the appeal be heard upon errors of law or errors of fact. And it is readily apparent that there can be no review of the judgment unless it is brought before the court for that purpose. This motion did not accomplish that result, and consequently the court was without power to make the order appealed from. It should, therefore, be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.