George Strassner, Respondent, v. Hannah Western Thompson, Appellant

George Strassner, Respondent, v. Hannah Western Thompson, Appellant. .Municipal Court—an order opening a default must recite the grounds therefor — ■ costs, allowed, on its reversal. An order of the Municipal Court of the city of New York, opening a default,, which does not state the grounds upon which! it is granted, as prescribed in chapter 748 of the Laws of 1896, amending section 1367 of chapter 4jt0 of theLáws of 1883, is fatally defective. Upon the reversal of .such an order by the Appellate, Division, the successful appellant is only entitled to ten dollars costs and disbursements, as; upon an appeal from a similar order of the Supreme Court, and not to thirty dollars-costs under section 3067 of the Code of Civil Procedure, as upon an appeal from a judgment of the Municipal Court of the city of New York. . Appeal .by the defendant, Hannah Western Thompson, from an order, of the Municipal Court of the city of New York, entered in the office of the clerk of said court on the 11th day of January, 1.899,. vacating a judgment of said court in favor of the defendant, granted upon the plaintiff’s default. - . ; R. L. Pritchard, for the appellant. Abraham Goldfarb, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Chapter 748 of the Laws of 1896, amending section 1367 of chapter 410 of the Laws of 1882, which gave a District Court of the city of New York the power to open defaults taken before it — a power now inherited by the Municipal Court of said city — provides that any order vacating a judgment shall recite and contain the grounds for the order. No grounds are specified in the •order appealed from. It is, therefore, fatally defective, and must be reversed. The matter should be remitted to the justice for a rehearing, and the entry of a proper order on his decision. (Colwell v. Devlin, 20 Misc. Rep. 355.) The most serious question is whether the full costs of the appeal should be imposed upon the respondent. It was held by the Appellate Term of the city and county of New York, in Colwell v. Devlin, (20 Misc. Rep. 616), Szerlip v. Baier (21 id. 692), and Thornall v. Turner (23 id. 363), that the appellant is entitled, as a matter of right, under section 3067 of the Code of Civil Procedure, to thirty dollars costs, the same amount as allowed on the reversal of a judgment. This might be the rule when the- order is reversed absolutely. But in the cases of Colwell v. Devlin and Thornall v. Turner the order was not reversed absolutely, but the application was remitted to the justice for a rehearing, and that is the disposition we have directed in this case. If costs are to be awarded on appeals from orders of this character the same as on appeals from judgments, we do not see why the analogy should not be complete, and why, under subdivision 2 of section 3066, the costs of appeal where the matter is remitted for a rehearing are not in the discretion of the court. But in our opinion the provision of the statute, that an appeal from an order shall lie as from a judgment, does not. prescribe the amount of costs to be awarded on such appeal. The amount of costs and the character of the appeal are different subject-matters. We think the ordinary rule should prevail here that obtains on similar appeals in the Supreme Court, that is the amount allowed is to be confined to ten dollars costs and disbursements. The contrary construction appears to us wholly unreasonable. , It seems extremely improbable that it could have been the intention of' the Legislature to allow upon appeals from a Justice’s Court three times as much as is allowed upon an appeal of a like order made in. the- Supreme- Court itself. . . i ■ The order should be reversed, with ten dollars costs and disbursements to the appellant, and the motion remitted to the justice for a. rehearing and for the entry of the proper order. ' j All concurred. Order reversed, with ten dollars costs and disbursements to appellant, and motion remitted to the justice for rehearing and the,entry of a proper order -