Opinion
June, 1911.
Myers, Hartman Schuhmann (David C. Myers, of counsel), for appellant.
Hamerman Rosenfeld (Joseph Hamerman and Isidor Sack, of counsel), for respondent.
The motion was made on the ground that the confession of judgment had been obtained from defendant by fraud and inadvertence.
The appellant contends that the Municipal Court is without power to vacate a judgment, except as prescribed by sections 253, 254 and 255 of the Municipal Court Act, and cites a number of cases to that effect. It is true that it has been held repeatedly that section 1, subdivision 19, of the Municipal Court Act is limited by the provisions of the other sections named in respect of motions of the character provided for in such sections. There is, however, no provision limiting the general power awarded by section 1, subdivision 19, to vacate a judgment entered on confession. The order appealed from, therefore, seems to have been fully authorized and to have been granted on a sufficient affidavit.
The order, however, undertakes to set aside the confession itself, a proceeding not authorized by the Code (see also Pelgram v. Ehrenzweig, 58 Misc. 195), and that provision must be stricken out, and the order, as so modified, affirmed, with costs.
SEABURY and GUY, JJ., concur.
Order modified, and, as modified, affirmed.