Steinberg v. Blank

Levy, J.

This is an appeal by the plaintiff from two orders. One of said orders was made granting the defendant’s motion to vacate and set aside a judgment taken against him by default; the other order denied plaintiff’s motion to vacate and set aside the previous order as being made without jurisdiction. An order to show cause was served on the plaintiff why judgment taken against defendant should not be vacated and set aside. The order was made returnable on a day certain and required that the same be served on the plaintiff by twelve o’clock noon. The order to show cause, however, was not served on the plaintiff until one-ten p. m. On the return day of the motion the plaintiff did not appear in court and defendant’s motion to open the default was granted on plaintiff’s failure to appear. Plaintiff then moved before another justice to vacate and set aside the order originally made which granted defendant’s motion on default.

Plaintiff contends that defendant’s failure to serve the order to show cause as required in said order was jurisdictional and, therefore, he did not have to appear on the return day. This is unquestionably correct. The order had no effect and the court had no power to consider the order to show cause on the return day since its requirement had not been complied with. Plaintiff’s failure to appear, therefore, did not constitute a default and hence the order is appealable.

The order granting defendant’s motion to vacate and set aside the judgment entered against him should be reversed, with costs, and in the light of this result it becomes needless to consider the appeal from the second order, which is dismissed, without costs.

Order granting defendant’s motion to open default and to vacate the judgment reversed, with ten dollars costs, and judgment reinstated. Appeal from order denying motion to vacate the order opening the default dismissed.

Bijur and Mullan, JJ., concur.

Order reversed and judgment reinstated.