Opinion
March 13, 1940.
Appeal from Supreme Court of Erie County, HILLERY, J.
Adolph M. Newman, for the appellant.
Stephen Goldstein, for the respondent.
The defendant moved under section 20 of the Buffalo City Court Act to vacate a default judgment which the plaintiff had taken and entered against it. Section 46 of said act has no application to the motion in hand. Inasmuch as section 20 prescribes no procedure for the opening of default judgments, the applicable provisions of the Civil Practice Act and the Rules of Civil Practice are to be resorted to. (City Court Act, § 56; Continental Purchasing Co., Inc., v. Woodworth, 239 App. Div. 638.) Under rule 60 of the Rules of Civil Practice, the City Court has the power to grant an order to show cause. No question was raised in the City Court relative to an affidavit of merit or to the furnishing of a bond to protect the plaintiff during the period of the stay granted in the order to show cause. Under the circumstances we will not consider those objections when raised here for the first time. ( Dougherty v. Galbraith, 215 App. Div. 747.) The moving affidavit shows a meritorious defense. Section 108 of the Civil Practice Act provides, in substance, that the court in its discretion may relieve a party from a judgment "taken against him through his mistake, inadvertence, surprise or excusable neglect." Upon the whole record we cannot say that the City Court abused its discretion in granting the order opening the default. Justice will be promoted by a trial upon the merits.
Laws of 1909, chap. 570. — [REP.
The order should be affirmed, without costs of this appeal to either party.
All concur. Present — CROSBY, P.J., CUNNINGHAM, DOWLING, HARRIS and McCURN, JJ.
Order affirmed, without costs of this appeal to either party.