Duly v. Herman , 145 N.Y.S. 900 ( 1914 )

Lehman, J.

The plaintiff has recovered judgment against the defendant by default. The defendant then moved to vacate and set aside the judgment on the ground that the defendant was never served with process. The motion was granted, and the case set down for trial on a day certain, on condition that the defendant comply with certain specified terms within a fixed time. The defendant failed to comply with these terms, and thereupon an order was entered denying the original motion.

It is certainly an anomalous proceeding that, where a defendant seeks relief from a judgment obtained without jurisdiction of his person, he can obtain this relief in the lower court only by submitting his person to the court’s jurisdiction, and having the case set for a trial, yet under the construction placed by this court on the Municipal Court Act the Municipal Court can pass on a motion for such relief only upon such terms. Friedberger v. Stulpnagel, 59 Misc. Rep. 498. The justice below, therefore, properly set the case down for trial, and the only question that can be raised by this appeal is whether the conditions imposed were proper.

The Municipal Court Act provides that the court may, as a condition, order a defendant to deposit the amount of the judgment in court, or to give an undertaking with “ sufficient sureties.” In this case, however, the court ordered the giving of a surety company bond as an alternative to the deposit of the amount of the judgment in court. In my opinion, where a defendant shows that he was not served with process, but voluntarily submits to the court’s jurisdiction, the court should not impose terms of an onerous nature which may prevent the defendant from obtaining any redress. The imposition of a condition that the amount of the judgment be deposited in court is in my opinion entirely too severe a burden to impose upon a litigant in defendant’s situation, and the imposition of the condition of the giving of a surety company bond is, I think, unauthorized. The Municipal Court Act permits the imposition of a bond “ with sufficient sureties ” and the court has no power to require a corporate surety.

The orders should be reversed with costs to the appellant to abide the event and motion to open default granted. Trial set for January 22, 1914.

Page and Whitaker, JJ., concur.

Orders reversed with costs to appellant to abide event, and motion granted.