Wolfert v. New York City Railway Co.

Gildersleeve, J.

It appearing that the summonses in these actions were duly served and filed and the cases placed upon the calendar the court below had a right to open plaintiffs’ defaults. Some confusion seems to have arisen in the Municipal Court regarding the power of that court to open a default where the .plaintiff is the defaulting party, evidently owing to a failure to distinguish the facts in the case of Lefenfeld v. Adler, 51 Misc. Rep. 66 , in which this court held that the remedy of the plaintiff was by appeal only and not by motion to open his default, and the facts in cases like these at bar. In the former case, the plaintiff was not in default. He appeared and made a motion for an adjournment which motion was denied, and he refused to proceed further with the case and it was dismissed. He could have proceeded with the trial and, if deféated, appealed from the judgment and had the refusal to grant the adjournment reviewed on appeal or he could have begun his action anew. Clearly he was not in default. In the cases at bar, the court had acquired jurisdiction of the parties, and upon the call of the calendar no one answered on the part of the plaintiff. The Municipal Court Act, (§ 253) does not discriminate as to which party shall move to open “ a default,” but the distinction between a default, which is a failure to appear, and an appearance, must always be borne in mind.

The orders in each of these cases will be reversed and trials ordered, with costs to the appellant to abide the event in each case, and the motion to open the default granted upon payment of ten dollars costs in each case in the court below.

Giegerich and Erlanger, JJ., concur.

*538 Orders reversed and new trials ordered, with costs to appellant to abide event in each case, and motion to open default granted upon payment of ten dollars costs in each ease in court below.