
    Lazarus Friedberger, Respondent, v. Elizabeth Stulpnagel, Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Municipal Courts: Procedure — Vacation of judgment — Judgment without process: Review — Judgments and orders «viewable — Order denying motion to vacate judgment.
    It was not the intention of the Legislature, in adding, by L. 1907, ch. 304, to section 253 of the Muncipal Court Act, the words “ or in which judgment is taken or final order made without the service of a summons or of process as required by law,” to authorize the court to vacate a judgment and dismiss the action in such case, but only to permit the defendant in such a ease to have the judgment vacated and to obtain leave to defend any claim the plaintiff may have against him.
    An order of the Municipal Court denying a motion by defendant to vacate the judgment and dismiss the action in such a case is not an appealable order.
    Appeal by the defendant from an order denying a motion to set aside a judgment entered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.
    August P. Wagener, for appellant.
    Olcott, Gruber, Bonynge & McManus, for respondent.
   Per Curiam.

In the original summons, issued in this action, the words and figures “ 128 Prince Street,” which were intended to designate the location of the court-house in the first district, Municipal Court, were stricken out and the words “66 Lafayette Street ” written over them in ink. The copy of the summons which was served upon the defendant also had the words “ 128 Prince Street ” stricken out, without any designation or mention of the street, or mention of the court-house. The defendant failed to appear upon the return day and a judgment was taken against her as by default. The next day, an attorney representing the defendant obtained an order to show cause and, upon the return of that order, filed a special notice of appearance in which he set forth that he appeared “ only for the purpose of moving to vacate and set aside the judgment entered herein by default, in favor of the plaintiff on February 3, 1908, on the ground that the copy summons served did not conform to the original summons and is defective in that no place where the same is returnable is stated in said copy summons, and for the purpose of moving to dismiss the proceedings, with costs, by reason of such defect.” This motion was denied, with five dollars costs; and, from the order entered thereon, the defendant appeals. I do not consider it necessary, in disposing of this appeal, to pass upon the question as to whether or not the court below acquired jurisdiction over the person of the defendant by the service of the alleged defective summons. If the service of such a summons was insufficient to confer jurisdiction over the defendant, it was equivalent to no service at all. If jurisdiction was thereby conferred, the defendant is in default. The question to be determined is, whether the Municipal Court can, by an order made after judgment has been rendered, vacate and set aside such judgment and dismiss the action. Prior to the amendments of section 1367 of the Consolidation Act, a District Court justice became functus officio, after rendering a judgment, and the only remedy an aggrieved party had was by an appeal therefrom. People v. Callahan, 7 Daly, 435. A justice of a District Court had no power whatever over a judgment, not even to amend it, nor to make an order setting it aside, nor to set aside the verdict of a jury or to grant a new trial. Schwartz v. Welcher, 2 Misc. Rep. 67; People v. Campbell, 18 Abb. Pr. 1; Edel v. McCone, 16 Daly, 216; Carpenter v. Willett, 28 How. Pr. 225, Ct. of Appeals. From the time the judgment was rendered a District Court justice became merely a ministerial officer. Carpenter v. Willett, supra. In the case of Van Pensselaer v. Chadwick, 7' How. Pr. 297-299, in discussing the question of the power of a justice of the peace, in a case where judgment had been rendered, the court said; “Ho motion could have heen made in the original action to set aside the proceedings for want of service, a justice of the peace having no power after judgment to entertain such a motion.” Unless, therefore, we can find some power conferred upon the Municipal Court, by statute, to set aside a judgment and dismiss an action, it is clear that no such power exists in that court. By chapter 484 of the Laws of 1862, power was given a District Court justice to open a default, the statute reading as follows: “ Upon motion before him to open and set aside any default made in any action tried before him.” Prior to the enactment of this statute, the court had no power over judgments even to open a default, “ no matter what may have been the circumstances under which the default was taken.” People v. Campbell, supra. Section 1367 of the Consolidation Act contained substantially the same provision and declared that any justice may, upon motion before him, open and set aside any default made in any action tried by or before him, and may award such costs, not exceeding ten dollars, as a condition for opening such default, as in his discretion shall be just and proper.” This section was amended by chapter 750, Laws of 1894, and again by chapter 748 of the Laws of 1896. This latter amendment gave to the Municipal Court still further power regarding defaults, and enacted that “ the court, or a justice holding the same, may, at any time, upon motion made upon such notice as the justice may direct, open any default and set aside, vacate or modify my judgment entered thereon, and set the cause therein for pleading, hearing or trial as the case may require, upon such terms as the court may deem proper.” It will be observed that, up to the time of the enactment of this statute, the court had no power over a judgment. Its power was limited to setting aside any default,” and no mention was made of the judgment. By the amendment above quoted, the court was given authority to vacate and set aside any judgment entered upon a default, and to set the cause down for pleading, hearing of the trial “ as the case may require.” ¡Nevertheless, the power thus conferred related wholly to judgments taken by default, and no power was given to dispose of the action in any other way than, if the default was opened, to set the ease down for future action. Gomnully & Jeffrey Mfg, Co. v. Gross, 25 Mise. Rep. 338; Wolchock v. Tombarelli, 32 id. 694. In other words, if the defendant had defaulted in appearing upon the return day and his default was opened, the case might be set down- for pleading; if the default was after issue was joined, then the cause must be set down for hearing or trial; the words, “ as the case may require,” clearly having reference to the situation of the case at the time the default was opened.

Section 253 of the Municipal Court Act was, as stated by the commissioners of revision, “ taken from the first part of section 1367 of the Consolidation Act and applies only to defaults.” The section is headed Court may open default;” "and the language giving power to the court, and directing the manner in which the case must be disposed of when a default is opened, is precisely the same as was contained in the Consolidation Act, section 1367. The Appellate Term has frequently decided that the construction to be given section 253 is not that it .gives the court power to vacate and set aside a judgment and dismiss the action> but that a judgment can only be vacated when a default is opened, and the order opening the default must contain a provision setting the case down for pleading, hearing or trial (Diehl v. Steele, 49 Misc. Rep. 457; Altieri v. Trotta, 53 id. 649; Barron v. Feist, 51 id. 589), and that such an order was an essential condition in opening a default.” Spiropulos v. Magnioni, 49 Misc. Rep. 90. This construction is in accordance with the decisions of all superior courts when called upon to define the powers of courts of statutory creation; the rule being to strictly limit the power of an inferior court to the exact literal meaning of the words used in a statute, holding them to the precise limits of jurisdiction prescribed by law, but to be liberal in reviewing their proceedings. Crawford v. Reed, 1 Johns Cas. 20; Handshaw v. Arthur, 9 App, Div. 175; affd, 161 N. Y. 664. If, then, section 253 remained the same as originally enacted, we should have no difficulty in disposing of this case. The section as amended reads as follows, the underscored words being the amendment inserted by the Legislature of 1907, by chapter 304, taking effect September first of that year: “The court, or a justice thereof, in a district in which a default or dismissal is taken, in an action or summary proceeding, or in which judgment is taken or final order made without the service of a summons or of process as required by law, may at any time upon motion made upon such notice as the court may direct, open such default or dismissal, and set aside, vacate or modify any judgment or final order entered in any such action or proceeding and set the action or proceeding down for pleading, hearing or trial as the case may require upon such terms as the court may deem proper.” It will be seen that the amendment consists of the added words “ or a justice thereof,” the words “ or dismissal,” and the words “ or in which judgment is taken or final order made without the service of a summons or of process as required by law.” The other language in the section remains exactly as it was prior to the amendment. In other words, the language of that portion of the section which bounds the power of the court and declares what it may do, when it is asked to exercise its authority, and which governs its course in cases that may arise under that section, remains precisely as it formerly existed. The words “ or dismissal,” were intended to dispel the uncertainty as to whether or not the court could relieve a. plaintiff who had defaulted, as well as a defendant. This was undoubtedly owing to the apparently conflicting decisions in Lefenfeld v. Adler 51 Misc. Bep. 66, and Wolfert v. New York City B. Co., 53 id. 539. It is now claimed that the words, “ or in which judgment is taken or final order made without the service of a summons or of process as required by law,” inserted in the section by the amendment aforesaid, confer power upon the Municipal Court to vacate a judgment and dismiss an action, where no service of process was made, and that, in such a case, the cause need not be continued, but may be terminated absolutely. This position is untenable, unless we are prepared to hold that the language of that portion of the section which directs the course to be taken and limits the power of the court in such oases has' been heretofore erroneously construed by this court; for, as there has been no change made in that portion of the section, if the court, prior to the amendment, had no power to set aside a judgment, unless it also set the case down for future action, the amendment does not add to its authority in that respect. If it was the intention of the Legislature to so enlarge the power of the ¡Municipal Court, it has failed to so express itself by any statutory enactment; and, as the Municipal Court can take nothing by implication, the amendment is of no force, as there is no power given to the court to carry it into effect. But there are several reasons why such an intent is not manifest and why another intent reasonably appears. Section 248 of the Municipal Court Act provides for a judgment of dismissal in certain cases with costs, but without prejudice to a new action; and section 249 provides for cases when a judgment of dismissal upon the merits may be given. It is reasonable to presume that, if the Legislature intended to grant power to the Municipal Court to vacate a judgment and dismiss an action for nonservice of process, an addition to either of those sections of words to that effect would have- been the method taken to accomplish such a result. Section 311 of the Municipal Court Act gives a person who has never been served with process, or appeared in the action, a right to appeal, and that section has not been repealed either expressly or by implication. We can find no express or implied intention on the part of the Legislature to confer more power upon the Municipal Court to dismiss an action than has already been given by sections 248 and 249 of the Municipal Court Act; and we are, therefore, of the opinion that the intent of the Legislature, in adding to section 253 the words above quoted, was, not to give power to the court to vacate a judgment and dismiss an action, but to afford a person who had never been served with process another remedy than that of being compelled to resort to the expensive and dilatory method of talcing an appeal from a judgment entered against him. Technically, a judgment so taken is not, so far as the defendant is concerned, a judgment taken by reason of his default; because, if never served, he cannot be said to be in default. Spiropulos v. Magnioni, supra. Nevertheless, there seems no good reason why a person who has never heen served with process, and has not appeared, may not, upon ascertaining that a judgment has been entered against him, be permitted, upon proper application therefor and proper proof, to have such a judgment vacated, and. be allowed to defend any claim the plaintiff may have against him, Parties may appear in court voluntarily and have their differences legally adjusted. Hun. Ot. Act, § 26. Until proof of nonservice is given, the court has prima facie jurisdiction, because proof of service of the process is always given before an inquest is taken. In Edel v. McOone, supra, the court held that such an inquest was a trial, within the meaning of the section regarding defaults, and that, although a defendant had not been served, he was not compelled to resort to an appeal or a suit in equity; and the setting aside of the judgment by the justice and fixing a day for the trial of the case was upheld by the court. An inquest is a trial. Harris v. Davis, 6 How. Pr. 118. Presumably, a party against whom a judgment has been taken knows that the plaintiff has a claim against him and may prefer to defend himself in the forum chosen by his adversary, where the costs in case of defeat are small and the issues tried promptly. And, although by an appeal he could have the judgment reversed absolutely, yet he would subject himself to a new action and, possibly, in a different court, where trials are longer delayed and are more expensive. As a reason for asking the court’s permission to be allowed to have his day in court, the fact of nonservice of process would be a. most potent one. There is no reason for depriving a defendant of this right because he is not legally in “ default.” In fact, such a situation has been generally regarded as a “ default ” by most practitioners and by the courts and is illustrated in the case at bar, where the defendant asks to have the judgment ” entered herein by “ default ” set aside, etc. A defendant, thus seeking relief in the court below, does so voluntarily and thereby renounces his remedy by appeal; and there is no maxim in law more familiar than that which declares that every man is at liberty to renounce any benefit which the law has reserved for him. If, therefore, a defendant prefers that the differences between himself and his advers ary be tried in the court below, a proper application and due proof accomplish that result. ¡Neither is the plaintiff harmed by the adoption of such a course. He has already submitted himself to the jurisdiction of the court and is also warned by notice of motion of the defendant’s claim. He can meet the issue by proof and, if the court is satisfied that no service of process was made upon the defendant, the judgment is vacated and the cause set down for pleading or trial. If, on the other hand, the court finds that service has been made, then and in that event the defendant is clearly in default, and may be relieved if such default is excusable. In either ease, the plaintiff is in no worse position than if the defendant had appeared upon the return day and joined issue. If the defendant’s motion is denied, he has his remedy by an appeal. Schcnkelman v. Kroll, 85 ¡N". Y. Supp. 1072'. The most that can be said is that the Municipal Court Act, in its present condition, gives a defendant who has not been served with process and has not appeared generally in the action two remedies, of either of which he can avail himself, viz.: An appeal from the judgment under section 311 and presenting to the appellate court facts from which that court can determine that no' service was made (Austen v. Columbia Lubricants Co., 85 ¡N. Y. Supp. 363; Lazarus v. Boynton, 86 id. 104), thereby obtaining an absolute reversal of the judgment; or, an application under section 253 to the court below to have the judgment vacated and the case set down for pleading or trial. This is what the Legislature evidently intended to secure. If the defendant adopts the latter remedy, he must show by his moving papers that he intends to bring himself within the jurisdiction and power of the court to grant him the relief asked for; and this he does not do by special appearance for the purpose of vacating the judgment only. This, as we have seen, the court has no power to do. A motion to set aside a judgment for nonservice of process is not equivalent to a general appearance. ¡Noble v. Crandall, 49 Hun, 474; Cohen v. Levy, 27 Mise. ¡Rep. 331. If, however, a defendant thus situated moves to have the judgment vacated and the cause set down for pleading or trial, upon proper proof, his motion should be granted. It may also be observed that a defendant thus situated is not entitled to both the remedies hereinbefore referred to. The plaintiff cannot he subjected to two hills of costs; one by reversal upon appeal direct from the judgment, and, possibly, one upon appeal from an order denying defendant’s motion. The construction given herein to section 253 makes the practice plain and in accord with the previous decisions of this court and violates no rule of law or practice. In the case at bar, the defendant sought to obtain from the court an order vacating the judgment and dismissing the action, and appeared specially and made a motion for that purpose only. The court had no power to grant such a motion or to malee the order asked for therein. The motion should, therefore, have been dismissed. The denial of the motion was the same in effect. The order made, however, is not an appealable order, as it is not one of the orders enumerated in sections 253, 254, 255, 256; nor is it an order denying a motion to open a default, as provided in section 257, and the appeal must therefore he dismissed.

Present: Gildersleeve, Giegerich and Greenbaum, JJ.

Appeal dismissed, with ten dollars costs.  