Opinion
November, 1906.
Max Brown, for appellant.
Max S. Levine, for respondent.
As near as we can determine from the somewhat confusing record presented upon this appeal and from what can be gleaned from the ambiguous and contradictory statements contained in the briefs of counsel, the history of this case appears to be as follows: The plaintiff began the action by the service of a summons returnable on May 31, 1906, and the parties appeared and the case was adjourned until June 13, 1906. Upon the adjourned day, the parties again appeared and the defendant by his attorney asked for a further adjournment, upon the ground that he had an absent material witness whom he had been unable to serve with a subpœna. This motion was denied; and it appears that the defendant took no further part in the trial, but suffered a default, and an inquest was taken and judgment entered against him. The defendant thereupon appealed from said judgment, as appears from a notice of appeal attached to the record and dated on that day. On the same day the defendant procured an order to show cause why the judgment should not be vacated and set aside and why he should not be permitted to "come in and defend the case;" this order was returnable on the 18th day of June, 1906. On the same day the judge who granted the last-mentioned order made another order, apparently upon the request of the plaintiff, by which he changed the return day of his first order from June eighteenth to June fourteenth; and a copy of the order changing the return date as aforesaid was served upon the defendant and upon his attorney. No moving papers upon which this order was granted appear in the return, the order, as to appearance of counsel, reciting merely that the plaintiff's counsel appeared in opposition. The order, however, denied the motion; and from this order, dated June 14, 1906, as well as again from the judgment of June 13, 1906, aforesaid, the defendant appeals by notice of appeal dated June 14, 1906. Subsequently, and upon June 28, 1906, the defendant obtained another order, returnable July 6, 1906, requiring the plaintiff to show cause why his default should not be opened and he be permitted to defend. This order was heard on July 13, 1906, before another justice than the one making the order of June fourteenth and by him denied; and the defendant appealed again from this order, by notice of appeal dated August 6, 1906. It is difficult to see how any more errors in practice could be made in one case than are presented by this record. First. The judgment taken by default cannot be appealed from. Kerr v. Walker, 104 A.D. 45; Brown v. Bourse, 43 Misc. 72. Second. The first motion made to open the defendant's default should not have been denied but dismissed, as the defendant clearly did not appear upon the hearing, as no moving or opposing papers are contained in the record, and the order, as before stated, reciting merely the appearance of the attorney for the plaintiff, it is therefore evident that there was no appearance on the part of the defendant. This order was an appealable order (Bass v. Carley, 96 N.Y.S. 1023); but the order being one not determining the merits of the defendant's application, and improperly reciting a denial instead of a dismissal of the motion, it can only be modified upon this appeal by making it conform to the facts and providing for a dismissal of the motion instead of a denial thereof. Third. The appeal from the last order cannot be sustained. The defendant had already appealed from the order of June 14, 1906, and his appeal was pending when he obtained from another judge a second order for the same relief. The application so made to another judge was an improper one. Section 253 of the Municipal Court Act does not provide, nor does orderly practice permit, a suitor to make successive applications to different judges to open defaults after a motion therefor has been denied by one. The order of June fourteenth, denying defendant's motion, was in force and valid until set aside or reversed; and the defendant could not evade its provisions by seeking the same relief by application to a second judge. The denial of this last motion was correct and, presumably, upon the ground that the order of June fourteenth was still in effect and appeal pending therefrom.
This order must, therefore, be affirmed.
Appeal from judgment dismissed, with ten dollars costs.
Order of June 14, 1906, modified by providing therein that the motion be dismissed and striking out the provision therein for costs and, as modified, affirmed, without costs of this appeal.
Order of July 13, 1906, affirmed, with costs, but without prejudice to the defendant to make a new motion in the court below, upon payment of the costs herein imposed, to open his default and to be allowed to defend the action upon the merits.
DUGRO and DOWLING, JJ., concur.
Order of June 14, 1906, modified by providing that motion be dismissed and striking out provisions for costs, and, as modified, affirmed, without costs of this appeal.
Order of July 13, 1906, affirmed, with costs, but without prejudice to defendant to make a new motion, upon payment of costs herein imposed, to open his default and to be allowed to defend the action upon the merits.