
    William C. Albertson and Arthur H. Bryan, Respondents, v. The Behrend Manufacturing Company, Appellant.
    
      Municipal Court of Rochester—judgment of, entered by default—power of the County Court of Monroe county to set it aside—from, what statutes derived.
    
    The power of the County Court of Monroe county to entertain a motion to set. aside a judgment of the Municipal Court of the city of Rochester, entered upon the plaintiff’s default, from which an appeal has been taken, is not derived solely from section 357 of the charter of the city of Rochester (Laws of 1880, chap. 14, as amd. by Laws of 1890, chap. 561), which provides that the motion must be made within twenty days after the entry of the judgment in the-Municipal Court, but is also conferred by section 3064 of the Code of Civil Procedure, which is made applicable to the Municipal Court of the city of Rochester by section 3336 of that Code, and which does not prescribe such a limit.
    
      Semble, that the provision of the charter above mentioned- is designed to apply only in case a transcript of the judgment has been filed but no appeal taken.
    Appeal by the defendant, The Behrend Manufacturing Company, from an order of the. County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 26th day of October, 1899, denying the defendant’s motion to open a default,. , to set aside a judgment and execution and grant a new trial in the Municipal Court of the city of Rochester, upon the ground that there was no power to grant such relief, the application not having-been made within twenty days after the entry of the judgment.
    
      S. D. Bentley, for the appellant.
    
      Charles Van Voorhis, for the respondents.
   Williams, J.:

The action in the Municipal -Court was commenced July 5,1899. The parties appeared on the return day, July twelfth, and without issue being joined, an adjournment was taken to July nineteenth. On the adjourned day, the defendant did not appear, the plaintiffs filed their complaint, gave their proofs, and took judgment by default. Subsequently an execution was issued upon the judgment.

July twentieth, the defendant appealed from the judgment to the County Court. The return upon such appeal was filed August twelfth. A transcript of the judgment was filed in the county clerk’s office.

The motion resulting in the order appealed from was noticed October fifth to he heard October tenth, and was decided October 26, 1899. '

The motion seems to have been denied upon the assumption that the only power given the County Court to entertain such a motion was under section 257 of the charter of the city of Rochester (Laws of 1880, chap. 14, as amd. by Laws of 1890, chap. 561), and inasmuch as the motion was not made within twenty days after the entry of the judgment in the Municipal Court, it must be denied..

In this the court erred. The provision of the charter in question was made for cases only where there had been transcripts filed, hut no appeals taken-.

When an appeal has been taken the power to entertain such a motion is given by chapter 19 of the Code of Civil Procedure. Section 3226 makes the provisions of that chapter (excluding titles 10 and 11) applicable to tlie Municipal Court of the city of Rochester, and for such purpose provides that the court shall be deemed to be a Justice’s Court, and the city of Rochester a town of Monroe county. And then section 3064 (which is a part of title 8 of chapter 19) gives the County Court power to entertain such a motion as We are here considering.

IJnder this chapter of the Code there is no twenty-day limit to the time within which the motion can he made. On the contrary, it has been held that it should not be made until after the return on appeal has been filed. (Kellock v. Dickinson, 5 App. Div. 515; Burbank v. Van Dam, 25 id. 623.)

The motion was, therefore, improperly denied for want of power in the court to entertain it, and without passing upon the merits.

The question of jurisdiction over the defendant has not been considered by the County Court, and will not, therefore, be passed upon by this court.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the case -remitted to the County Court to enable the motion to be heard and determined on the merits.

All concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and. the case remitted to the County Court, where- the motion shall be heard and determined upon the merits.  