Opinion
April, 1895.
Samuel D. Levy, for appellants.
Julius Levy, for respondent.
After active litigation, judgment in favor of the defendant in this action was rendered by the justice below and entered on the 22d day of September, 1894. Within twenty days thereafter the plaintiffs moved before the justice that the judgment be set aside and a new trial ordered, which motion was granted.
Subsequently, on the motion of the defendant, that order was vacated, and on the 15th day of December, 1894, plaintiffs instituted this appeal from the order last made.
It thus appears that the appeal, if considered as taken from the judgment, was not reasonably instituted, a period of more than twenty days having elapsed since its entry upon the docket (Code Civ. Proc. §§ 3046, 3213; Consol. Act, § 1438), and from the respective orders no appeal would lie to this court. Jacobs v. Zeltner, 9 Misc. 455; Wensley v. Randolph, Id. 457.
But appellants contend that the date of the second order must be taken as the date of the judgment by reason of the fact that, pending the expiration of the time to appeal therefrom, it became a nullity by the force of the order vacating it, and that the second order, by vacating the first, revived the judgment and fixed the date of its final rendition.
If this view were to be adopted, it would necessarily involve the result that the judgment, as of that date, was void as being rendered after the lapse of eight days from the date of the trial (Consol. Act, § 1384; Bloomer v. Merrill, 1 Daly, 485), but it is clear that the order setting aside the judgment and granting a new trial was beyond the power of the justice to make, and the judgment as rendered was in no way affected.
Therefore, the appeal comes too late and must be dismissed.
Prior to the late amendment of section 1367 of the Consolidation Act (Laws 1882, chap. 410) by chapter 750 of the Laws of 1894, a justice of a District Court unquestionably had no jurisdiction to set aside a judgment and order a new trial of a cause tried before him ( Bloomingdale v. Adler, 7 Misc. 182; Schwartz v. Wechler, 2 id. 67; 49 N.Y. St. Repr. 145), but it is claimed that this power has been given by the amendatory act noted. Such is not its effect.
The act cannot be construed as relating to judgments other than those rendered upon a default; nothing therein contained gives a justice power to order a new trial and the jurisdiction to "vacate, modify and set aside" clearly appears to have been intended as but auxiliary to the power to set aside a default. If the first sentence of the statute leaves any doubt as to the question it is removed by the last, which provides: "He (the justice) may likewise, as a condition for opening any such default, or vacating, modifying or setting aside any judgment, order any defendant in default to give an under taking," etc., that he will not delay plaintiff's collection of his claim "if the plaintiff shall prevail on the trial of such action."
We may well point out the situation which would be presented by the opposite construction of the act.
A defeated litigant would be required to await the expiration of the time within which the justice would have power to vacate or modify the judgment in order that a definite position upon appeal might be intelligently assured, yet the expiration of this period would mark the limit of the time to appeal.
Our conclusion is that by the judgment originally rendered upon the trial of this action the cause was determined, the first order made thereafter was a nullity and that from which this appeal is taken was necessarily without significance.
Appeal dismissed, but, under the circumstances of the case, without costs.
GIEGERICH, J., concurs.
Appeal dismissed, without costs.