Opinion
March 11, 1968
Riccio Catena ( Gene L. Catena of counsel), for appellant.
Donald A. Campbell for respondents.
This is an appeal from an order of the City Court of the City of Amsterdam denying a motion to relieve defendant-appellant from a judgment entered by default upon the ground that the default was excusable. The motion was denied upon the ground that the defendant had failed to show a meritorious defense.
For the first time upon this appeal it is urged that the application before the court is also one to vacate the judgment upon the ground of an omission and irregularity in connection with its entry, viz, that no affidavit as to the facts constituting the claim was filed although an inquest was held. As to the necessity of such an affidavit it would appear that section 1402 Uniform City Ct. Act of the Uniform City Court Act by its reference to CPLR 3215 requires the filing of such an affidavit. It may be that this requirement has been retained because of the general practice of not transcribing and filing the minutes of an inquest. As a result without a verified complaint and in the absence of an affidavit no permanent sworn proof of the claim would be in the court's records. ( Serkey v. Gladstein, 40 Misc.2d 962.)
However the appeal before this court is confined to the ruling of the City Court on the motion then before it and upon the matters argued there. A clear distinction must be drawn between that motion directed to the favor of the court based upon excusable neglect plus a showing of a meritorious defense on the one hand and a motion to vacate a voidable judgment on the other. The City Court retains jurisdiction to entertain the latter motion. Being the court which rendered the judgment it has inherent power and control over its own proceedings and is the proper court in which to originate a motion to vacate or correct the judgment for irregularities. (9 Carmody-Wait 2d, New York Practice, §§ 63:174, 63:175, 63:186.)
Order affirmed, with $20 costs.