Opinion
April 16, 1956
Present — Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ. [See post, p. ____.]
Appeal from an order of the City Court of Mount Vernon, denying appellant's motion for an order to vacate a decision and direction for judgment in favor of respondent after a trial before the court without a jury, upon the ground that the decision was not rendered within thirty days after the final submission of the case and the time had not been extended as provided by statute. The motion to vacate was made subsequent to the rendition of the decision and the entry of the judgment thereon. Order unanimously affirmed, with $10 costs and disbursements. The statute invoked (Mount Vernon City Charter, § 191, as amd. by L. 1955, ch. 169, § 5) provides that upon an issue of fact joined, if a jury trial be not demanded, "the court must hear the evidence, and decide all questions of fact and law, and render judgment accordingly within thirty days from the time the same was submitted for that purpose". (Emphasis supplied.) It is not provided in the statute that the court may not render judgment thereafter, except that failure of the court to render a decision in any case within a period of three months shall create a mistrial and necessitate a new trial. We construe the statute as depriving the court of jurisdiction to make a decision after the termination of the three months' period. In view of the provision with respect to the effect of the failure to render a decision within three months, however, and of the fact that no similar provision is made with respect to a failure to decide a case within thirty days, we regard the provision that a decision must be made within thirty days as directory and not mandatory. Since the decision in the instant case was made within the three months' period, although not within the thirtyday period, it is our opinion that jurisdiction to decide the case was not lost, and that the motion to vacate was properly denied. (Cf. Fallon v. Hattemer, 229 App. Div. 397.)