Opinion
October, 1912.
Walter L. Bunnell, for appellant.
Benjamin A. Hartstein, for respondent.
On July 13, 1911, a summons was served in an action in the City Court against the defendant; on July 20, 1911, judgment was entered therein for $309.86; execution was issued on the same day and returned wholly unsatisfied.
On March 20, 1912, defendant moved to vacate the judgment because of alleged non-service of summons.
On March 26, 1912, an order was entered on consent vacating the judgment and allowing defendant to answer.
On April 8, 1912, a further order was entered on said motion vacating said order of March twenty-sixth, and restoring the judgment; appointing a referee to take proof and report as to whether defendant was served, upon the defendant's filing and serving within four days a bond to pay the judgment; also to pay the costs and disbursements of the reference if it was established that defendant was served with the summons; and denying the motion to vacate in the event of the defendant's failure to file and serve the undertaking as thereinbefore provided.
On April 19, 1912, defendant filed a bond to pay the judgment in the event that the referee and the court both decided that the service should stand. This bond, not being in conformity with the requirement that it should be to pay in the event of the service being held good, was abandoned.
On May 9, 1912, an order for the defendant's examination in supplementary proceedings was issued and served.
On May 15, 1912, defendant's motion to stay his examination in supplementary proceedings was denied.
On May 16, 1912, defendant moved to open the default and for leave to serve and file a new bond, which complied with the order of April eighth. The motion was heard before another justice, who granted it on May 17, 1912, by the order appealed from.
Having, after the motion had been denied, given a bond which would be ineffectual unless both the referee and the court were adverse to him, the defendant waited nearly a month and then moved before another justice nominally to reopen a default which did not exist, but really to reverse and vacate the decision of April eighth, that the bond to be given thereunder must be made and filed within four days or the motion would be denied.
The practice of renewing before one justice a motion which had been denied by another, without leave of the court, will not be tolerated. Garner v. Hellman, 47 Misc. 336, 357. The adjudication in the order of April eighth, that, unless defendant filed a bond in a prescribed form within four days, the motion to vacate would ipso facto be denied, and, in the order of May sixteenth, that a stay of his examination in supplementary proceedings should be refused, cannot be evaded by first filing an irregular bond in defiance thereof, and, when that fails, making a motion in the guise of a motion to open a default, but really to vacate, reverse and annul the prior order. Childs v. Childs, 144 A.D. 168, 169; Haskell v. Moran, 117 id. 251, 252; Matter of Cullinan, 109 id. 816, 817; Tracy v. Falvey, 102 id. 585, 588.
Order reversed and motion denied, with ten dollars costs of motion and ten dollars costs and disbursements of the appeal.
SEABURY and BIJUR, JJ., concur.
Order reversed and motion denied.