
    Jacob Goldman, Respondent, v. Harry Shiffer, Appellant.
    Second Department.
    October 22, 1908,
    Court — opening judgment by default in Municipal Court.
    Under the statute authorizing the Municipal Court or a justice thereof to open judgments by default, a motion therefor may be heard by a justice other than the one presiding when the default was taken, where the latter has granted an order to show cause why the default should not be opened.
    Appeal, by the defendant, Harry Shiffer, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 16th day of March, 1908, upon the defendant’s default, and also from ah order denying the defendant’s motion to open the default and vacate and set aside the judgment.
    
      Holland Read Rasquin, for the appellant.
    
      Isaac Siegel, for the respondent.
   Rich, J.:

It appears that the action was at issue and on the trial calendar of the Municipal Court on Friday, March 13, 1908, on which day defendant’s attorney had been subpoenaed-to appear at the Special Term of the Supreme Court and testify as a witness,in an action on the calendar of that court for trial on that day. On account of this engagement the Municipal Court justice adjourned the trial to Monday, March sixteenth. The trial of the action in which the attorney was subpoenaed was commenced on the afternoon of the thirteenth, but not finished, and the attorney was not called to the witness stand that day. Court adjourned Friday to the following Monday at ten ■ o’clock a. m., and the attorney was subpoenaed to attend at that time. At the opening of the Municipal Court on Monday the attorney presented his affidavit staling these facts, and asked for a further adjournment, which was denied, the trial justice stating that the defendant had been granted an adjournment on that ground Friday and was not entitled to another. The attorney then went to the Special Term, was called, sworn and testified as a witness for the plaintiff at about eleven a. m. Judgment was entered in this action in Municipal Court by default in favor of the plaintiff. On learning this fact and on the same day the judgment was entered, the attorney presented affidavits showing all of the facts and an affidavit of merits to the same justice who was presiding when the judgment was entered, and the justice made an order requiring the plaintiff to show' cause before himself or one of the justices of the court at a stated term, to be held on March twentieth, why the default should not be opened and the judgment entered vacated and set aside. On March twentieth the court was held by another justice, who seems from his memoranda to have reached the conclusion that the defendant had presented a legal excuse upon his application for an adjournment of the trial, but denied the motion upon the ground that the defendant was limited to the remedy of appealing from the order of the justice denying his motion for adjournment, and that the Municipal Court was without power to grant the relief sought, under the aiithority of Warth v. Moore Blind Stitcher & Overseamer Co. (125 App. Div. 211). Section 253 of the Municipal Court Act (Laws, of 1902, chap. 580, as amd. by Laws of 1907, chap. 304) vests in that court, or a justice thereof, absolute power to open a default upon such terms and conditions as the court may deem proper, and this power is not limited by the fact that the motion comes on for' hearing before a justice of the court other than the one presiding when the default was taken. In the case cited, upon which the learned justice in the court below relied, -relief was sought under the provisions of section 724 of the Code of Civil Procedure, and was disposed of upon grounds not applicable to the appeal under consideration. While the learned justice who wrote the opinion in Warth v. Moore Blind Stitcher & Overseamer Co. condemned the practice of applying to the Special Term to open a default after application to the trial court on affidavits for an adjournment had been denied, as being an appeal from one judge to another and not permissible, this case does, not fall within the principle, as the order to show cause was granted by the justice before whom the default was taken, upon additional affidavits not used on the motion for the adjournment, and presented additional facts entitling the defendant to the relief-sought.

The order appealed from, must be reversed, the judgment vacated and set aside and a new trial ordered, without costs to either party.

Woodward, Jerks and Hooker, JJ., concurred; Gaynor, J., concurred in result.

Order of the Municipal Court reversed, judgment vacated and set aside and new trial ordered, without costs.  