249 A.D. 452 | N.Y. App. Div. | 1937
This is an appeal from an order of the Rensselaer County Court which directs “ that, the motion of the defendant to open his default be, and the same hereby is, granted upon the payment by him of taxable costs and disbursements together with ten dollars costs of this motion.”
The action was commenced by plaintiff in Justice’s Court in the town of Pittstown, Rensselaer county, to recover damages claimed to have been caused through defendant’s negligence in an auto
No appeal was taken from the judgment of the Justice’s Court, but a transcript thereof was filed in the Rensselaer county clerk’s office (Justice Ct. Act, § 272), and the County Court relies for jurisdiction upon the portion of that section which reads, “ From the time of filing such transcript the judgment is deemed the judgment of the County Court of that county, and must be enforced accordingly.” I quote from the opinion in Dieffenbach v. Roch (112 N. Y. 621): “ Ordinarily no one would understand that a judgment which had been recovered in a Justice’s Court, and subsequently docketed in the County Court, was in any sense rendered in the County Court; and there is no countenance for such a meaning to be found in any statute. * * * After a justice’s judgment has been docketed in the county clerk’s office,
A new trial may be had under the Justice Court Act when the appellant in his notice of appeal has demanded a new trial in the appellate court (Justice Ct. Act, § 442). The jurisdiction of the County Court is statutory, and as there has been no appeal there may be no new trial. We entertain the appeal and reverse the order. (Civ. Prac. Act, § 631, subd. 2; Belknap v. Waters, 11 N. Y. 477; Gang v. Gang, 253 id. 356. Cf. Stull v. Then, supra.)
The order should be reversed on the law and facts, with costs, and the motion denied, with costs.
Rhodes, McNamee, Crafser and Heffernan, JJ., concur.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.