Opinion
November 10, 1947.
Alfred W. Bergen for relator.
Charles E. Murphy, Corporation Counsel ( John F. Kelly of counsel), for respondents.
By paying the fee provided for in section 1557-a of the Civil Practice Act, as amended by chapter 770 of the Laws of 1946, the movant knew or should have known that if costs were not allowed the order submitted by it would automatically be entered by the county clerk. The statutory limitation prescribed in section 612 of the Civil Practice Act against the party entering the judgment or order was set in operation herein when the movant submitted the proposed final order to the clerk of Special Term, Part VII. Moore Co. v. Heymann ( 207 A.D. 416) urged by the movant as confirming its contention, states at page 417: "In the case of a judgment or order where the party or an attorney procures the entry thereof by his own overt act through presenting it for entry himself at the clerk's office, he, of course, has notice of the fact of entry".
In view of the present provisions of section 1557-a of the Civil Practice Act, presenting the order to the clerk of the part was tantamount to presenting it to the county clerk.
Motion is denied.