Myers v. Klein

Cuy, J.

The record in this case discloses a most extraordinary situation. Plaintiff brought an action against the defendant, claiming in his complaint that there was due'him from defendant the sum of seven dollars and fifty cents. The summons was personally served upon the defendant and he defaulted and a judgment was entered against him for the sum of ten dollars and eighteen cents. This judgment was subsequently increased by an addition thereto of two dollars and fifty cents costs, making in all the sum of twelve dollars and sixty-eight cents. On February 5, 1916, thirty-eight days after the entry of this judgment, the plaintiff began a second action, again serving a summons and complaint. In this last complaint he sets up the recovery of the prior -judgment and asserts that the amount is fifteen dollars and nine cents; that no part of the same has been paid and asks judgment, for that amount. How or in what manner the amount of the judgment has been increased from twelve dollars and eighteen cents to fifteen dollars and nine cents does not appear.

Upon the return day of the summons the defendant interposed an answer in which he set up that the complaint failed to state a cause of action; that ten years had not elapsed since the recovery of the former judgment; that the action had been commenced by personal service of the summons; that no leave to commence the action had been given and asked for a dismissal of the complaint. This objection could have been disposed of before trial under section 89 of the Municipal Court Code. The defendant defaulted, however, at the trial and an inquest was taken and judgment rendered against the defendant for the sum of about twenty-eight dollars. This last judgment was entered on February 24, 1916. Upon an order to show cause returnable on March 7, 1916, the defendant moved before another justice of the Municipal Court for an order vacating this last judgment. Upon the return day of this motion the plaintiff’s attorney asked for additional time in which to file a brief, which was granted and all proceedings stayed until the hearing of the motion. The motion was granted on March 29, 1916, and the judgment of February 24, 1916, vacated. From the order vacating the judgment and from the order granting a stay- the plaintiff appeals.

It is perfectly plain that there was no authority for the entry of a second judgment against the defendant. The action was instituted in plain violation of the provisions of section 1913 of the Code of Civil Procedure and its object, substantially admitted by plaintiff’s attorney, was to increase the amount of the judgment so that summary proceedings could be instituted thereunder.

A reading of the opposing affidavit made by the plaintiff’s attorney and used in opposing the motion resulting in the order appealed from would indicate that this is not the only case in which the same practice has been indulged in. The defendant, however, has no standing in court, except to move to open his default and we know of no authority recognizing the right of one justice of the Municipal Court to vacate a judgment entered by another justice and there is authority against it. Borgia & Patane Inc. v. Paris, 92 Misc. Rep. 211.

The order appealed from being one of those which the court had not the power to make is appealable and must be reversed, but without costs.

Order vacating judgment reversed, without costs, and with leave to defendant to move to open his default upon the last judgment entered against him.

. Bijur and Phtlbin, JJ., concur.

Order reversed.