Opinion
October 12, 1909.
John Macgregor, for the appellant.
William L. Barnett, for the respondent.
The action was brought to recover damages alleged to have been sustained through the negligence of the defendant as a common carrier of passengers. The plaintiff was a passenger upon a steamboat owned and operated by the defendant. He was injured by falling over an unguarded hatch on the unlighted forward deck of the vessel. The evidence was sufficient to make the issue of defendant's negligence and plaintiff's freedom from negligence contributing to his injury questions of fact for the jury. At the close of the evidence counsel for the defendant moved to dismiss the complaint upon the grounds that there was no proof of negligence on the part of defendant, and that plaintiff was shown guilty of contributory negligence. The trial court reserved decision on this motion "until a motion be made for a new trial, if it be considered necessary." The questions of fact were submitted to the jury in a charge of which the defendant cannot justly complain, and a verdict was rendered for the plaintiff, whereupon counsel for the defendant renewed his motion to dismiss, and also moved to vacate and set aside the verdict as being contrary to the evidence, contrary to law, excessive, and against the weight of evidence. The record shows that judgment was rendered on the verdict in favor of the plaintiff for $250 damages, $2 costs and $24.50 disbursements — in all $276.50. Eighteen days later the justice who presided at the trial of the case indorsed upon the record: "Motion to dismiss case at close of all the evidence granted; also motion to set aside verdict. Judgment also vacated and set aside."
After judgment was entered on the verdict the trial court was without power to grant a motion to dismiss the complaint or to set aside the verdict. No motion is shown to have been made to vacate and set aside the judgment. The motion to vacate and set aside the verdict was made before the entry of judgment, and the record contains no further proceedings connected with the action, with the exception of the indorsement or order made by the court, and the entry of the judgment appealed from. After the rendition and entry of judgment no question remained before the court. The questions of fact involved were submitted under a charge free from error. The verdict was not against the weight of the evidence. The judgment was properly entered and it must be reinstated. The Municipal Court has no inherent powers; its jurisdiction is purely statutory, and its proceedings must be based upon authority expressly given, or at least inferable from the statute. The only authority to vacate and set aside a verdict or judgment is contained in subdivision 19 of section 1 and in section 254 of the Municipal Court Act, which sections must be read together. The latter requires that the order must award a new trial and set the case down for trial for a time to be specified therein; this has not been done, and the judgment entered thereon was unauthorized. ( Dixon v. Carrucci, 53 Misc. Rep. 271; Wolchock v. Tombarelli, 32 id. 694; Murphy v. Joline, 62 id. 461.)
Upon both of these grounds the judgment and order of the Municipal Court are reversed and the verdict and judgment in favor of the plaintiff reinstated, with costs to the appellant.
HIRSCHBERG, P.J., JENKS, GAYNOR and MILLER, JJ., concurred.
Judgment and order of the Municipal Court reversed, with costs, and verdict reinstated, with costs.