Opinion
June, 1912.
Morris Jacobs, for appellant.
Clarence B. Campbell, for respondent.
This action was tried on February 26, 1912, and on the fourth day of March following the court rendered judgment in favor of the plaintiff. On March ninth, the defendant served a notice of motion, returnable on March twelfth, to vacate and set aside the judgment upon the ground specified in sections 254 and 255 of the Municipal Court Act. The motion was heard on March twelfth, and was subsequently decided in favor of the defendant. From the order entered upon that motion the plaintiff appeals to this court. The sections of the Municipal Court Act referred to contemplate that the motion can only be made at the close of the trial, or "within five days from the time the judgment was rendered." In the present case no motion was made at the close of the case. While the notice of motion was served within five days from the time the judgment was rendered, the motion itself was not made within that time. In Buchsbaum v. Feldman, 43 Misc. 85, the court said: "Had the Legislature intended that the notice of motion might be given within the five days, the clause 'in the latter case (that is if not made at the close of the trial) two days' notice must be given' would not have been inserted, because unless it was the intent of the Legislature to limit the time to five days within which such motion must be made there would be no good reason for shortening the time of eight days' notice of motion to but two days. A notice of motion is distinct from the motion itself. Giving a notice is a mere warning that an order will be applied for, and it is clear that the intent of the act was that, from parties having ground for the relief contemplated in section 254, promptness in having their motion made, and not promptness in giving such notice, is required."
See also Ryan v. Brown, 51 Misc. 67, and Applebaum v. Bonagur, 56 id. 615. The motion not having been made within the time required by law, it follows that the court below was without power to entertain and decide it.
Order reversed and judgment reinstated with costs.
LEHMAN and BIJUR, JJ., concur.
Order reversed.