
    Bradstreet’s Collection Bureau, a Corporation, Appellant, v. Nagler’s Brass Works, Inc., Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Jurisdiction — Municipal Court Code, § 15.
    While the Municipal Court of the city of Hew York under section 15 of the Municipal Court Code may vacate a judgment entered in a case tried without a jury, the court has no jurisdiction to dismiss the complaint on the merits.
    
      Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, which vacates and sets aside a judgment after a trial before a justice without a. jury, and dismisses the complaint.
    A. Frank Cowen (Bernard Cowen, of counsel), for appellant.
    Harry E. Herman, for respondent.
   Guy, J.

This case was tried before the court without a jury and a judgment rendered in favor of the plaintiff on the 12th day of January, 1916. Subsesequently by an order entered on the 7th day of February, 1916, the justice who tried the case vacated and set aside the judgment and dismissed the complaint upon the merits. The power to do this is attacked upon this appeal.

Section 6, subdivision 7, of the Municipal Court Code declares that that court has power To vacate, amend, correct or modify any process, mandate, judgment, order or final order, in the furtherance of justice, for any error in form or substance; to grant a new trial upon any of the grounds for which a new trial may be granted by the supreme court in an action pending therein, including the grounds of fraud and newly discovered evidence.” The Appellate Term in the second department, in the case of Petsche v. MacDonald, 94 Misc. Rep. 655, by a divided court, has held that the section above referred to confers power upon the Municipal Court, in a case tried without a jury, to vacate a judgment and order a new trial, although thus conferring upon that court more power than is possessed by the Supreme Court. Without expressing an opinion upon that question, we are reluctantly constrained to follow that decision in order to preserve uniformity in the two departments so far as possible, but it is nowhere suggested nor can authority be found for the right of a justice of the Municipal Court, not only to vacate a judgment rendered by him after a trial without a jury, but in addition thereto dismiss the complaint upon the merits, thus not only reversing himself, but precluding the plaintiff from beginning another action for the same cause. Notwithstanding the Municipal Court has been declared a court of record, it still remains a statutory court with such power only as is given by statute within the limits of the Constitution of the state. Schmitt v. Querengaesser, 94 Misc. Rep. 640.

The respondent claims such power is given under section 1317 of the Code of Civil Procedure but that section applies to appellate courts only.

Order modified by striking therefrom the words the complaint dismissed upon the merits with costs ” and adding thereto the words “ and a new trial granted,” and, as so modified, affirmed, without costs to either party.

Bijub and Cohalait, JJ., concur.

Order modified, and, as so so modified, affirmed, without costs.  