Opinion
December, 1907.
Robert Loudon, for appellant.
Menken Brothers, for respondent.
The plaintiff herein appeals from an order vacating a judgment and setting aside the verdict of a jury. The case was tried and a verdict rendered in favor of the plaintiff on April 24, 1907. The defendant thereupon made a motion to set aside the verdict, which motion was denied. Subsequently, and on May 2, 1907, the defendant made a motion, for a reargument of the motion theretofore made to set aside the verdict, and the court granted said motion; and, on May 7, 1907, an order was entered setting aside the verdict and vacating the judgment; and the case was set down for trial on May 22, 1907, upon payment of the sum of ten dollars costs to the plaintiff within ten days. Upon the hearing of the motion for reargument, the plaintiff urged that more than five days had elapsed after the rendition of the judgment, and that, under section 254 of the Municipal Court Act, the motion could not be entertained. In this position the plaintiff was undoubtedly correct. The defendant could not, under the guise of a motion for a reargument, extend the limitation prescribed by section 254, supra, in which a motion to set aside the verdict of a jury, or vacate a judgment must be made; and the order herein would have to be reversed, were it not that it is conceded that the plaintiff's attorney received, accepted and retained the ten dollars costs imposed by the terms of the order setting aside the verdict, and is thereby precluded from bringing this appeal. Logelinge v. N.Y. El. R.R. Co., 5 A.D. 198; Platz v. City of Cohoes, 8 Abb. N.C. 392.
Present: GILDERSLEEVE, GUY and BRUCE, JJ.
Appeal dismissed, with ten dollars costs