Catalano v. North British & Mercantile Insurance Co. of London & Edinburgh

Issue was joined in this action on December 29, 1905, and the cause adjourned from time to time and finally set down for trial for March 8, 1905. Upon that day, and for two days prior thereto, the defendant’s attorney was actually engaged in the trial of a cause in the Supreme Court in Brooklyn. The plaintiff’s attorney was notified of such engagement and, when the case was called in the trial court, an affidavit was submitted to the trial judge setting forth such engagement and asking for an adjournment. This request was refused and inquest was taken and judgment rendered in favor of the plaintiff. Subsequently a motion-was made to open the defendant’s default, based upon affidavits setting forth the foregoing facts, which motion was denied. The defendant appeals from the judgment taken by default and also from the order denying its motion to open such default, and also has made a motion before this court to open such default, which motion is to be considered upon this appeal. The appeal from the judg*538ment entered by default must be dismissed. The rule regarding default judgments in the Municipal Court is now, the same as in courts of record, and an appeal from such a judgment will not lie in the first instance. Candelioro v. Beriventura, 86 N. Y. Supp. 357; Brown v. Bouse, 43 Misc. Rep. 72, 86 N. Y. Supp. 240. See also Kerr v. Walter, 104 App. Div. 45; S. C., 93 N. Y. Supp. 311. The motion made by the defendant in this court to open its default is based upon section 3064 of the Code of Civil Procedure applicable, to justices’ courts and formerly applicable .to municipal courts. That section is, however, no longer applicable to municipal courts, its application being expressly precluded by section 363 of the Municipal Court Act, and the motion made in this court must therefore be dismissed. The only remedy provided for by the Municipal Court Act, where jurisdiction of the person of- a defendant has been acquired by service of process or general appearance in the action and a default has been taken against him, is by motion in the lower court to open such default; and, if such motion is denied, by appeal therefrom, which appeal is expressly provided for in section 257 of that act. Schrenkeisen v. Kroll, 85 N. Y. Supp. 1072. An examination of the affidavits submitted on the motion satisfies us that justice would be promoted by permitting the defendant to have his day in court.

The appeal from the judgment is dismissed, with ten dollars costs to respondent.

The motion made in this court to open defendant’s default is denied, with ten dollars costs to respondent.

The order denying the defendant’s motion in the court below to open defendant’s default is reversed and a new trial ordered, with costs to the appellant.

Costs in favor of one party to be offset against the other.

' Davis and Clinch, JJ., concur.

Appeal dismissed, with ten dollars costs to respondent. Motion denied, with ten dollars costs to respondent, and order reversed and new trial ordered, with costs to appellant.