Opinion
January Term, 1900.
S.D. Bentley, for the appellant.
Charles Van Voorhis, for the respondents.
The action in the Municipal Court was commenced July 5, 1899. The parties appeared on the return day, July twelfth, and without issue being joined, an adjournment was taken to July nineteenth. On the adjourned day, the defendant did not appear, the plaintiffs filed their complaint, gave their proofs, and took judgment by default. Subsequently an execution was issued upon the judgment.
July twentieth, the defendant appealed from the judgment to the County Court. The return upon such appeal was filed August twelfth. A transcript of the judgment was filed in the county clerk's office.
The motion resulting in the order appealed from was noticed October fifth to be heard October tenth, and was decided October 26, 1899.
The motion seems to have been denied upon the assumption that the only power given the County Court to entertain such a motion was under section 257 of the charter of the city of Rochester (Laws of 1880, chap. 14, as amd. by Laws of 1890, chap. 561), and inasmuch as the motion was not made within twenty days after the entry of the judgment in the Municipal Court, it must be denied.
In this the court erred. The provision of the charter in question was made for cases only where there had been transcripts filed, but no appeals taken.
When an appeal has been taken the power to entertain such a motion is given by chapter 19 of the Code of Civil Procedure. Section 3226 makes the provisions of that chapter (excluding titles 10 and 11) applicable to the Municipal Court of the city of Rochester, and for such purpose provides that the court shall be deemed to be a Justice's Court, and the city of Rochester a town of Monroe county. And then section 3064 (which is a part of title 8 of chapter 19) gives the County Court power to entertain such a motion as we are here considering.
Under this chapter of the Code there is no twenty-day limit to the time within which the motion can be made. On the contrary, it has been held that it should not be made until after the return on appeal has been filed. ( Kellock v. Dickinson, 5 App. Div. 515; Burbank v. Van Dam, 25 id. 623.)
The motion was, therefore, improperly denied for want of power in the court to entertain it, and without passing upon the merits.
The question of jurisdiction over the defendant has not been considered by the County Court, and will not, therefore, be passed upon by this court.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the case remitted to the County Court to enable the motion to be heard and determined on the merits.
All concurred.
Order appealed from reversed, with ten dollars costs and disbursements, and the case remitted to the County Court, where the motion shall be heard and determined upon the merits.