12 Misc. 158 | New York Court of Common Pleas | 1895
After active litigation, judgment in favor of the
in this action was rendered by the justice below, and entered on the 22d day of September, 1894. Within 20 days thereafter the plaintiffs moved before the justice that the judgment be set aside, and a new trial ordered, which motion was granted. Subsequently, on motion of the defendant, that order was vacated, and on the 15th day of December, 1894, plaintiffs instituted this appeal from the order last made. It thus appears that the appeal, if considered as taken from the judgment, was not reasonably instituted, a period of more than 20 days having elapsed since its entry upon the docket (Code Civ. Proc. §§ 3046, 3213; Consolidation Act, § 1438), and from the respective orders no appeal would lie to this court (Jacobs v. Zeltner, 9 Misc. Rep. 455, 30 N. Y. Supp. 238; Wensley v. Randolph, 9 Misc. Rep. 457, 30 N. Y. Supp. 239). But appellants contend that the date of the second order must be taken as the date of the judgment by reason of the fact that, pending the expiration of the time to appeal therefrom, it became a nullity by the force of the order vacating it, and that the second order, by vacating the first, revived the judgment, and fixed the date of its final rendition. If this view were to be adopted, it would necessarily involve the result that the judgment, as of that date, was void, as being rendered after the lapse of eight days from the ■date of the trial (Consolidation Act, § 1384; Bloomer v. Merrill, 1 Daly, 485); but is clear that the order setting aside the judgment and granting a new trial was beyond the power of the justice to make, and the judgment as rendered was in no way affected. Therefore the appeal comes too late, and must be dismissed.
Prior to the late amendment of section 1367 of the Consolidation Act (Laws 1882, c. 410) by chapter 750 of the Laws of 1894,
Laws 1894, c. 750, § 1, amends Laws 1882, c. 410, § 1367, so as to read as 'follows: “Any justice may, at any time within twenty days after judgment has been rendered by him, upon motion duly made, open and set aside any •default taken in any action tried before or by him, or vacate, modify or set ■aside any judgment rendered by him, and may award such costs, not exceeding ten dollars, as a condition for opening any such default or vacating, modifying or setting aside any such judgment against any party to the action, as in h'is discretion shall be just and proper. He may, likewise, as a condition .for opening any default or vacating, modifying or setting aside any judgment, ■order any defendant in default to give an undertaking with sufficient sureties to the effect that such defendant will not sell, assign or transfer any of his property with intent ro hinder, delay or defraud the plaintiff in the collection of his claim or demand if the plaintiff shall prevail on the trial of such action, .and that such defendant or his sureties will pay the amount of any judgment trecovered against such defendant in such action.”