Opinion
January, 1922.
Kamen Ostertag (Sol. S. Ostertag, of counsel), for appellant.
Stockton Stockton (George M. Billings, of counsel), for respondent.
The action was brought in the Municipal Court, issue joined, and the case placed on the "reserved generally" calendar. Later on, plaintiff's attorneys served a notice of motion on defendant's attorneys to restore the case to the trial calendar. No opposition was made by defendant and on default the motion was granted. No formal order was made or entered, but the justice indorsed on the motion papers, "Motion to restore is granted on default and the case is set for April 9, 1920, F.J.C., Jr." No notice of entry of this so-called order was served on defendant's attorneys. Thereafter without defendant's knowledge, an inquest was taken and a judgment entered. Nothing was done by plaintiff for over one year when, on April 20, 1921, a transcript of the judgment was filed in the county clerk's office. Defendant then learned of the judgment and promptly moved in the Municipal Court to vacate and set aside the judgment on the ground that it was void. This motion was denied on the ground that the motion was made too late, as over one year had elapsed. Mun. Ct. Code, § 129, subd. 2. Defendant then moved for a stay, and this motion was denied upon the ground that the court had no power to stay the said judgment. Plaintiff then obtained an order in the City Court for the examination in supplementary proceedings of the bank, a third party, and defendant obtained an order to show cause why said examination order should not be vacated. That motion was granted on the ground that the judgment was void, and the order entered thereon is the order now before this court for review. I think the case in the Municipal Court was improperly on the calendar. Garrison v. Barrett, 176 N.Y.S. 19; United States Fidelity Guaranty Co. v. Liberty Cloak Co., 185 id. 278.
The defendant not having been served with notice of entry of the order or direction of the justice of the Municipal Court transferring the case from the "reserved generally" calendar to the "day calendar" as required by rule 33 of the Municipal Court Rules, the court should not have permitted the inquest or entered the judgment as upon a default. The failure of the plaintiff to submit proof of compliance with this rule makes the judgment entered upon the irregular proceedings of the attorney voidable. The motion made by the defendant to "vacate the judgment" should have been granted under subdivision 7 of section 6 of the Municipal Court Code, which provides that the Municipal Court has jurisdiction "to vacate, amend, correct or modify any process, mandate, judgment, order or final order, in furtherance of justice, for any error in form or substance."
The Municipal Court justice was in error in denying the motion to "vacate the judgment," and in giving as his reason the prohibition contained in section 129, subdivision 2, Municipal Court Code. There is nothing in section 129 which overrides the provisions of section 6, subdivision 7, nor does the limitation of one year in section 129, subdivision 2, have any effect upon the vacating of a judgment under section 6, subdivision 7. Section 129, subdivision 2, has relation only to the opening of defaults and distinctly provides: "A motion to open a default * * * must be made with due diligence and upon good cause shown and in no event more than a year after the entry of judgment * * *." It will be readily seen that this subdivision has reference only to opening defaults, which by the moving papers are admitted, and the relief which follows the opening of a default is to vacate the judgment. The defendant by failing to appear on the trial day was not guilty of any neglect, or omission of legal requirement which is the case when a party is in default. In the instant case there was no default, and none of the provisions of section 129 of the Municipal Court Code apply. The judgment, however, was not a nullity, and it was error for the court below to so regard it. The Municipal Court has ample power to grant to the defendant a reargument of the motion heretofore denied, or the defendant may apply upon new papers showing what has transpired since the entry of the alleged judgment.
The order appealed from must, therefore, be reversed and the defendant has his remedy as indicated in this opinion.
Order reversed, without costs, and motion denied.
BIJUR and McCOOK, JJ., concur.
Order reversed.