Opinion
April, 1906.
Edwin L. Garvin, for appellant.
Max Schleimer, for respondent.
The order appealed from, which vacated the plaintiff's judgment, was made upon the ground that the judgment was void because the decision was not rendered within fourteen days from the date of the submission of the cause, or within the additional time given by consent of the parties (Mun. Ct. Act, § 230), but the application for the order was not made within five days after the judgment was rendered.
The judgment was not rendered upon default, hence the motion did not fall within section 253 of the Municipal Court Act; and, while the justice had power to vacate the judgment upon the ground that it was void, that power existed by virtue of section 254 (Stern v. Fleck, 102 A.D. 272), limited to a case where the motion was made within the period of five days provided by that section. Butchsbaum v. Feldman, 43 Misc. 85.
The provisions of subdivision 19 of section 1 of the act, declaring the power to direct or set aside verdicts or to open or vacate judgments, are necessarily qualified by the particular restrictions of sections 252 to 256, which cover the whole subject; and nothing in the statute affords authority for the vacatur of a judgment, not rendered upon default, where the motion is made after five days have elapsed.
The order appealed from is, therefore, reversed, with costs.
SCOTT and TRUAX, JJ., concur.
Order reversed, with costs.