La Spina v. Pennsylvania Railroad , 126 N.Y.S. 88 ( 1910 )

Platzek, J.

This action was tried before the court with a jury. At tbe close of tbe plaintiff’s case, upon motion of tbe defendant’s attorney, tbe complaint was dismissed and judgment was entered accordingly. Subsequently tbe plaintiff moved for an order vacating tbe judgment and setting tbe case down for trial, which motion was granted, and from tbe order thus made this appeal is taken.

The Municipal Court is a court of limited jurisdiction, its powers are purely statutory and, if it transcends the jurisdiction conferred by statute, its judgments or orders will be void. “ In their organic power they take nothing by implication.” Gillin v. Canary, 19 Misc. Rep. 591, 596. The only power given to a justice of the Municipal Court to “ vacate, amend or modify any judgment ” rendered by him is conferred by section 251 of the Municipal Court Act. Ryan v. Brown, 51 Misc. Rep. 67. The provisions of section 999 of the Code of Civil Procedure cannot be made applicable, as that section applies only to actions in the Supreme Court, the City Court of the city of New York or a County Court. Code Civ. Pro., § 3317, subd. 7.

By virtue of thé provisions of section 251 of the Municipal Court Act, a justice of that court may set aside the verdict of a jury, or he may vacate, amend or modify any judgment rendered upon a trial by the court without a jury.

The act of the justice in this case granting the order aforesaid comes within 'neither of the above enumerated cases. If the dismissal of the complaint was improper, the plaintiff’s remedy was to have appealed from the judgment entered upon such dismissal. The order vacating the judgment was unauthorized, and the court below was without jurisdiction to make it. It is not, however, reviewable upon an appeal taken directly thetefrom, as it is not one of the orders mentioned in sections 253, 251, 255 or 256 of the Municipal Court Act, and only such orders as those specified therein are appealable. White v. Lawyers Surety Co., 81 N. Y. Supp. 217; Spiegelman v. Union R. Co., 95 App. Div. 92; Levy v. Warschauer, 125 N. Y. Supp. 625.

Appeal dismissed, with ten dollars costs.

Guy and Gavegan, JJ., concur.

Appeal dismissed.