
    William C. Roberts, Respondent, v. Frank M. Spero, Appellant.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Municipal Courts — Procedure: Judgments — Motion for judgment on pleadings: Vacation of judgment — To permit amended answer.
    Although there seems to be no authority directly given to the Municipal Court of the city of New York to order a judgment in favor of either party upon the pleadings, where, in an action brought in the Municipal Court of the city of New York, the plaintiff moves for judgment on the pleadings, ostensibly on the ground that the answer sets up no defense,' the motion may be considered as an oral demurrer, and the court should permit the defendant to amend; and the entry of judgment without granting such permission is unauthorized.
    The Municipal Court of the city of New York may not legally .vacate or set aside a judgment solely for the purpose of permitting a defendant to file an amended answer.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, seventh district, borough of Manhattan, and also fcom an order denying a motion to vacate the judgment.
    Walter E. Godfrey, for appellant.
    Baggott & Ryall, for respondent.
   Gildersleeve, J.

The action was for goods sold and delivered. The plaintiff served and filed a verified complaint and upon the return day the defendant asked for and obtained an adjournment for the purpose of filing an answer. The case was adjourned until October fifth for trial, and the defendant was ordered to file Ms answer on or before October first which he did. On the day fixed for trial both parties answered ready. The plaintiff thereupon moved for judgment upon the pleadings. The trial judge thereupon took the matter under consideration, and some days later gave judgment in favor of the plaintiff. Subsequently the defendant moved to vacate the judgment and that -defendant have leave to serve an amended answer. This' motion was granted upon condition that the defendant should, on or before October thirteenth, pay the sum of ten dollars costs and pay the amount of the judgment into court. Upon compliance with said conditions the case was to be set down for trial on October fifteenth, and upon failure- to comply therewith the motion should be denied. Not having complied with the terms of the order on October fifteenth an order was entered denying the motion, and from the judgment and the last order defendant appeals. There seems to be no authority directly given to a Municipal Court justice to order a judgment in favor of either party upon the pleadings. In the Supreme Court the right to dispose of the issues by a motion for a judgment upon the pleadings has been recognized; and, by amendment to section 547 of the Code of Civil Procedure, in effect September 1, 1908, the right to make such a motion at any time after issue joined is declared. Theretofore such motions were usually made in that court at the opening of the trial. Neither chapter 6 of the Code, which contains the aforesaid section, nor chapter 10 of the Code, which provides how issues of law and of fact shall be tried, is applicable to the Municipal Court, being expressly excluded by section 3347, subdivisions 4 and 7. The Municipal Court Act nowhere in terms provides for such a determination of an action; and, when a Municipal Court justice makes an order not provided for by statute or for which there is no statutory authority, such order is of no more force than if made by a private person. We have held that, although there is no power given by the Municipal Court Act,-in terms, to dismiss a plaintiff’s complaint on the ground that it does not state a cause of action unless a written demurrer has been interposed, nevertheless a motion made for such purpose may be considered as an oral demurrer, but if granted, however, the plaintiff must be allowed to amend (Rogers v. Fine, 49 Misc. Rep. 633) ; and there seems to be no good reason why this rule should not be applied to cases where the plaintiff makes a motion for judgment on the pleadings, ostensibly, upon the ground that the answer sets up no defense. This is the view most favorable to the plaintiff; and it would seem idle to require the plaintiff to file a demurrer when the answer, concededly, set up no defense. In such a case, however, the court should permit the defendant to amend; and an entry of judgment without the granting of such permission is unauthorized. The defendant was not in default and has a right to appeal from the judgment. It is unnecessary to consider the order, except to say that there is no power given to the Municipal Court to vacate and set aside a judgment solely for the purpose of permitting an amended answer to be filed.

Judgment reversed, without costs in this court, with leave to the defendant to file an answer within five days, upon payment of ten dollars costs in the lower court.

Giegerich and Seabury, JJ., concur.

Judgment reversed, without costs in this court., with leave to defendant to file an answer within, five days, upon payment of ten dollars costs.  