
    Ernest Catalano, Respondent, v. The North British and Mercantile Insurance Company of London and Edinburgh, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Municipal Courts — Procedure—Relief from default — When default should he opened.
    The proper procedure for relief from a judgment in the Municipal Court of the city of New York, entered upon defendant’s default in appearing at the trial, is not by an appeal from the judgment.
    
      nor by a motion at the appellate term but by motion in the court where the judgment was rendered.
    Where, in an action in the Municipal Court of the city of New York, upon the day set for the trial the defendant’s attorney is actually engaged in the trial of a case in the Supreme Court in Brooklyn and has been for two days previous thereto and the plaintiff’s attorney .is so notified and, when the case is called, an affidavit is submitted setting forth such engagement and asking for an adjournment, but the request is refused, an inquest is taken and judgment is rendered for the plaintiff, a motion to open the default should be granted and, upon appeal from an order denying such motion, the order will be reversed. ■
    Appeal by the defendant from a judgment in favor of the plaintiff, entered by default in the Municipal Court of the city of 3STew York, second district, borough of Manhattan, and from an order denying defendant’s motitih to open said default.
    Leo Levy, for appellant.
    Hobart S. Bird, for respondent.
   Gildersleeve, J.

Issue was joined in this action on December 29, 1905, and the cause adjourned from time to time and finally set down for trial for March 8, 1905. Upon that day, and for two days prior thereto, the defendant’s attorney was actually engaged in the trial of a cause in the Supreme Court in Brooklyn. The plaintiff’s attorney was notified of such engagement and, when the case was called in the trial court, an affidavit was submitted to the trial judge setting forth such engagement and asking for an adjournment. This request was refused and inquest was taken and judgment rendered in favor of the plaintiff. Subsequently a motion-was made to open the defendant’s default, based upon affidavits setting forth the foregoing facts, which motion was denied. The defendant appeals from the judgment taken by default and also from the order denying its motion to open such default, and also has made a motion before this court to open such default, which motion is to be considered upon this appeal. The appeal from the judgment entered by default must be dismissed. The rule regarding default judgments in the Municipal Court is now, the same as in courts of record, and an appeal from such a judgment will not lie in the first instance. Candelioro v. Beriventura, 86 N. Y. Supp. 357; Brown v. Bouse, 43 Misc. Rep. 72, 86 N. Y. Supp. 240. See also Kerr v. Walter, 104 App. Div. 45; S. C., 93 N. Y. Supp. 311. The motion made by the defendant in this court to open its default is based upon section 3064 of the Code of Civil Procedure applicable, to justices’ courts and formerly applicable .to municipal courts. That section is, however, no longer applicable to municipal courts, its application being expressly precluded by section 363 of the Municipal Court Act, and the motion made in this court must therefore be dismissed. The only remedy provided for by the Municipal Court Act, where jurisdiction of the person of- a defendant has been acquired by service of process or general appearance in the action and a default has been taken against him, is by motion in the lower court to open such default; and, if such motion is denied, by appeal therefrom, which appeal is expressly provided for in section 257 of that act. Schrenkeisen v. Kroll, 85 N. Y. Supp. 1072. An examination of the affidavits submitted on the motion satisfies us that justice would be promoted by permitting the defendant to have his day in court.

The appeal from the judgment is dismissed, with ten dollars costs to respondent.

The motion made in this court to open defendant’s default is denied, with ten dollars costs to respondent.

The order denying the defendant’s motion in the court below to open defendant’s default is reversed and a new trial ordered, with costs to the appellant.

Costs in favor of one party to be offset against the other.

' Davis and Clinch, JJ., concur.

Appeal dismissed, with ten dollars costs to respondent. Motion denied, with ten dollars costs to respondent, and order reversed and new trial ordered, with costs to appellant.  