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Victory Building Corporation v. Crist

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 22, 1944
267 App. Div. 941 (N.Y. App. Div. 1944)

Opinion

March 22, 1944.

Present — Cunningham, P.J., Taylor, Dowling, McCurn and Larkin, JJ.


Order affirmed, with ten dollars costs and disbursements to respondent to abide the event. Memorandum: The motion was apparently made under section 46 of the Buffalo City Court Act (L. 1909, ch. 570) which contains no time limitation on motions to open default judgments. Since a verified answer had already been served, the moving papers show merits because they indicate that the records of the Home Owners Loan Corporation will establish that plaintiff's claim was paid. Assuming, then, that section 108 of the Civil Practice Act applies ( Allen v. Hungarian Mother's Club, Inc., 259 App. Div. 139), still the motion was timely made, because no certified copy of the judgment, with notice of entry, was served. ( Redfield v. Critchley, 277 N.Y. 336.) There was sufficient basis for the exercise of the court's discretion to open this default. All concur. (The order affirms an order of the Buffalo City Court which vacated a default judgment in favor of plaintiff and restored the case to the ready calendar, in an action to recover amounts claimed to be due on the sale of real property.)


Summaries of

Victory Building Corporation v. Crist

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 22, 1944
267 App. Div. 941 (N.Y. App. Div. 1944)
Case details for

Victory Building Corporation v. Crist

Case Details

Full title:VICTORY BUILDING CORPORATION, Appellant, v. HERBERT A. CRIST, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 22, 1944

Citations

267 App. Div. 941 (N.Y. App. Div. 1944)

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