Opinion
March Term, 1900.
I. Henry Harris, for the appellants.
D. Humphreys, for the respondent.
The first judgment in this action was rendered after a trial before Justice ADOLPH H. GOETTING, and awarded the plaintiffs $249 and costs. After its rendition the defendant procured an order to show cause why said judgment should not be corrected so as to conform to the finding of the court and make the recovery an amount not exceeding $40. Upon the return of the order to show cause the justice, instead of correcting the judgment, made an order in these words:
"Motion to set aside judgment for a new trial granted, without costs, judgment and lien to stand as security, and to be returned December 7th, 1899.
"A.H. GOETTING, " J.M.C.
"Dated November 27 th, 1899."
The case next came up before Justice JACOB NEU. The plaintiffs' attorney applied for a postponement on the ground that his clients had appealed from the foregoing order, and on the further ground that he expected to be immediately engaged in a case in the Supreme Court in which he was one of the attorneys, and which had been marked ready for trial on the previous day. The application was denied, the plaintiffs put in no evidence and the complaint was dismissed, with costs, on the motion of the defendant.
An order of the Municipal Court, vacating or modifying a judgment rendered by a justice without a jury, must recite the grounds upon which it is made. (Laws of 1896, chap. 748.) The omission of the recital prescribed by the statute renders the order fatally defective. ( Strassner v. Thompson, 40 App. Div. 28. ) The order of Justice GOETTING must, therefore, be reversed. The matter cannot be remitted to him for a rehearing and the entry of a proper order upon his decision, inasmuch as he has gone out of office. It would seem, however, that his successor may proceed to make an order containing the appropriate recital under section 1390 of the New York City Consolidation Act (Laws of 1882, chap. 410). That section provides that no proceedings had before either of the courts held by either of the justices to which it refers, shall abate or be discontinued by reason of the death, removal from office or vacancy in office of any justice, "but the respective successors in office of the said justices shall proceed to hear, try, determine and give judgment in and upon the same and upon all matters and things pending before and undecided by their predecessor in office with the same powers, jurisdiction and authority as their predecessors had." This matter will, therefore, be remitted to the justice of the Municipal Court, who has succeeded Justice GOETTING, for a rehearing and the making of a proper order.
This disposition of the first appeal necessarily involves a reversal of the judgment rendered by the direction of Justice NEU, inasmuch as at the time when the case was before him no valid order had been made for a new trial.
All concurred.
Judgment and order of the Municipal Court reversed, with ten dollars costs and disbursements, and motion remitted for a rehearing to the justice who succeeded Justice GOETTING.