Citation Numbers: 97 Misc. 376
Judges: Guy
Filed Date: 11/15/1916
Status: Precedential
Modified Date: 1/12/2023
Plaintiff brought an action against defendant upon an alleged claim for personal injuries occasioned by being struck by defendant’s automobile. Plaintiff failing to file the summons and complaint the defendant took a default judgment against the plaintiff for the costs of the action. The action was brought in the eighth district, Municipal Court. Subsequently the plaintiff made a motion to open his default returnable in the fifth district. The plaintiff, however, appeared in the eighth district upon the return day of the motion and the justice refused to entertain the motion the papers being entitled in the fifth district. In the fifth district the plaintiff failing to appear the' motion was dismissed with five dollars costs. The plaintiff then obtained an order to show canse returnable in the eighth district why his default should not be opened. Upon the return of this motion the defendant objected to its hearing upon the ground that the previous motion in the fifth district had been denied on the merits and the justice hearing the motion held that the plaintiff should withdraw it and move in the fifth district for an order setting aside the alleged denial of the motion.
Plaintiff then again moved in the fifth district for an order setting aside the denial of his first motion therein, and upon the hearing it was disclosed that the original motion had not been denied on the merits but merely dismissed and the plaintiff then withdrew his last motion.
He then again moved in the eighth district for an order opening his default and vacating the judgment, which motion was granted upon terms. This appeal is taken from the order last mentioned. The costs upon the dismissal of the motion in the fifth district have not been paid.
The respondent claims that the Muncipal Court Code makes no provision for the “ dismissal ” of a motion, section 167, subdivision 1, of that Code, being limited to the imposition of costs upon the “ granting or denying a motion. Section 15 of the Municipal Court Code, however, makes the practice, etc., in the Municipal Court conform to that of a Supreme Court where not in conflict therewith, and rule 37 of the General Rules of Practice declares that: “ If the party making the motion shall not appear, the court shall " deny the motion,” etc. It follows, therefore, that the word “ dismissal ” used in the decision of a motion is equivalent to a denial of the same, and, therefore, the power to impose costs within the limit of section 167, Municipal Court Code, is given that court. The plaintiff was, therefore, automatically stayed from making a motion resulting in the order appealed from until the payment of the five dollars costs imposed upon the dismissal of the motion in the fifth district.
Order appealed from reversed, without costs and with leave to renew the motion to vacate the judgment and open the default upon payment of the costs imposed by the order entered in the Fifth District Court.
Bijur and Shearn, JJ., concur.
Order reversed, without costs.