
    Harry Applebaum, Appellant, v. Vincent Bonagur, Respondent.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Municipal Courts — Review — General power of appellate court; Decision. '
    The court is not authorized, upon the reargument of a motion to set aside a verdict in the Municipal Court of the city of New York, more than five days after judgment was rendered, to make an order vacating the judgment against the objection of the opposing party; but, where such an order was made on defendant’s motion and the order awarded costs to the plaintiff and the plaintiff’s attorney accepted and retained the costs, the plaintiff is thereby precluded from appealing from the order.
    Appeal by the plaintiff from an order of the Municipal Court of the city of Hew York, ninth district, • borough of Manhattan.
    Robert Loudon, for appellant.
    Menken Brothers,«for respondent.
   Per Curiam.

The plaintiff herein appeals from an order vacating a judgment and setting aside the verdict of a jury. The ease was tried and a verdict rendered in favor of the plaintiff on April 24, 1907. The defendant thereupon made a motion to set aside the verdict, which motion-was denied. Subsequently, and on May 2, 1907, the defendant made a motion, for a reargument of the motion theretofore made to set aside the verdict, and the court granted said motion; and, on May 7, 1907, an order was entered setting aside the verdict and vacating the judgment; and the case was set down for trial on May 22, 1907, upon payment of the sum of ten doll am costs to the plaintiff within ten days. Upon the hearing of the motion for reargument, the plaintiff urged that more than five days had elapsed after the rendition of (.he judgment, and that, under section 254 of the Municipal Court Act, the motion could not be entertained. In this position the plaintiff was undoubtedly correct. The defendant could not, under the guise of a motion for. a reargument, extend the limitation prescribed by section 254, supra, in which a motion to set aside the verdict of a jury, or vacate a judgment must be made; and the order herein would have to be reversed, were it not that it is conceded that the plaintiff’s attorney received, accepted and retained the ten dollars costs imposed by the terms of the order setting aside the verdict, and is thereby precluded from bringing this appeal. Logelinge v. N. Y. El. R. R. Co., 5 App. Div. 198; Platz v. City of Cohoes, 8 Abb. N. C. 392.

Present: Gildersleeve, Guy and Bruce, JJ.

Appeal dismissed, with ten dollars costs.  