Opinion
December, 1911.
Walter L. Durack, Jr., for appellant.
Isadore Apfel, for respondent.
The defendant appeals from an order of the Municipal Court denying a motion to open his default.
The proceedings leading up to the denial of the motion are as follows: The action was commenced by personal service of the summons on the 28th day of July, 1911, and was returnable on August 9, 1911. On the return day issue was joined and the cause adjourned until September 5, 1911. On that day the defendant did not appear, and the case was again adjourned until September 13, 1911. Subsequently, the defendant moved to open his default, which was granted upon payment of five dollars costs; and upon payment of said costs the case was to be restored for trial for October 6, 1911, otherwise the motion to open the default was denied. The costs not having been paid, an order was entered on October 10, 1911, denying defendant's motion. Thereafter the defendant procured from another justice an order to show cause, returnable on October 13, 1911, why his default should not be opened; and his motion was again denied. Thereupon the defendant procured a third order to show cause why his default should not be opened, and his motion was a third time denied. From the last order, dated October 19, 1911, this appeal is taken.
There is no authority for such practice. The first order opening the defendant's default was conditioned upon the payment of costs within a specified time, and in such a case the order never becomes operative until the costs are paid (Koransky v. Greenberg, 136 A.D. 644); and the subsequent entry of the order of October tenth, denying the motion, was merely carrying into effect the original order which opened the default upon terms. An appeal would lie from this order; and, if aggrieved thereby, the defendant's only remedy was by appeal therefrom; and there was no authority for the making of the successive motions thereafter, nor jurisdiction in the court to make the orders of October 13 and October 19, 1911. Steinman v. Blumenfeld, 61 Misc. Rep. 220; Colwell v. N.Y., N.H. H.R.R. Co., 57 Misc. 623.
"Motions of the kind required to be made upon motion once denied by a judge cannot be renewed unless (a) with leave of the same judge who denied it, or (b) if made upon presentation of new facts which have occurred since the denial of the previous motion." Goldenberg v. Adler, 123 N.Y.S. 387, 389.
LEHMAN and PENDLETON, JJ., concur.
Order affirmed, with costs.