Robert Wendin, Appellant, v. Brooklyn Heights Railroad Company, Respondent

Robert Wendin, Appellant, v. Brooklyn Heights Railroad Company, Respondent. Second Department, March 9, 1906. Municipal Court of New York—order opening default not reviewable on u appeal from judgment which has been vacatéd. As section 257 of the Municipal Court Act of the city of New York, prohibits an . appeal from an order Opening a . default and, vacating a judgment entered thereon, a plaintiff who has obtained a judgment by default,, which has been" "Opened and the judgment vacated, cannot review said order under the, guise of an appeal from the judgment in his favor. Appeal by the plaintiff, Robert Wendin, from a. judgment of the Municipal Court of the city of Hew York,, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of 'said court on the 20th day of January, 1906, the plaintiff appealing for the purpose of procuring a review of an order opening a default. Charles A. Rathkopf, for the appellant. A. M. Williams, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: This action was brought for the purpose of recovering damages for personal injuries resulting from an assault committed upon the plaintiff by, one' of defendant’s servants while plaintiff was a passenger in one of defendant’s ears. The action resulted in a judgment in favor of the plaintiff for $100. Subsequently the defendant moved the court'.to open the judgment, which was taken by'default after numerous adjournments, and the motion made 'before the learned justicé who tried the action was denied,’with five dollars costs. Later the defendant made a motion before another justice of the Municipal Court, asking to have the default, opened, and this motion was granted on condition that the defendant pay the plainr tiff ten dollars costs, which appears to have been done, although in an irregular manner. ■ The plaintiff, who. has no grievance so far as • the judgment is concerned, appeals from the. judgment, in an effort to get a review of .this order opening the default; and while we have no doubt under the facts stated that he would be entitled to a reversal of the order if the same was before the court, we are of opinion that he cannot appeal from a judgment with which he is satisfied for the purpose of gaining relief from the order; that he cannot give this court jurisdiction in this way. Section 257 of the Municipal Court Act (Laws of 1902, chap. 580) provides that “ an appeal shall lie from an order granting or denying a motion, made as provided in the last four sections, as from a judgment, except that no appeal shall lie in the first instance from an order opening a default and vacating a judgment entered thereon.” It was evidently the purpose of., this section not to permit an appeal from an order vacating a-judgment, but to compel the parties to retry the action and review all of the questions upon an appeal from the final judgment if it resulted adversely to the party whose judgment had been vacated. As the plaintiffs case now stands there is no judgment for him to appeal from; the default has been opened and the judgment set aside. Hntil the judgment, or some judgment, in the case has been entered, there is no foundation for an appeal from the judgment, and as the order cannot be reviewed in the ■first instance, the original judgment cannot be reinstated. This does not seém to reach the justice of this particular case, but we have no power to change the law governing the jurisdiction of this court in reviewing judgments of the Municipal Court, and there seems no other way than to dismiss this appeal, but it should be without costs. . Appeal dismissed, without costs. Hibsohbebg, B. J., Gaynob, Bich and Milleb, JJ., concurred. Appeal dismissed, without costs.