
    Louis Steinberg, Plaintiff, Appellant, v. Oscar Blank, Defendant, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 24, 1924.
    Judgments — opening default — requirement of order to show cause why defendant’s default should not be opened not complied with as to service — failure to serve pursuant to order jurisdictional — order opening defendant’s default reversed.
    An order granting defendant’s motion to vacate and set aside a judgment entered against Mm should be reversed where it appears that the order to show cause why the judgment should not be set aside was served on the plaintiff one hour and ten minutes after the time required in the order for service, since failure to serve as the order directed was jurisdictional and plaintiff’s. failure to appear did not constitute a default.
    Appeal by plaintiff from two orders, one granting defendant’s motion to vacate and set aside the judgment entered against him by default and the other denying the plaintiff’s motion to vacate and set aside and to declare null and void ab initio such previous order.
    
      Arthur P. Burch, for the appellant.
    
      Fliashnick & Sustick (Emanuel Sustick, of counsel), for the respondent.
   Levy, J.

This is an appeal by the plaintiff from two orders. One of said orders was made granting the defendant’s motion to vacate and set aside a judgment taken against him by default; the other order denied plaintiff’s motion to vacate and set aside the previous order as being made without jurisdiction. An order to show cause was served on the plaintiff why judgment taken against defendant should not be vacated and set aside. The order was made returnable on a day certain and required that the same be served on the plaintiff by twelve o’clock noon. The order to show cause, however, was not served on the plaintiff until one-ten p. m. On the return day of the motion the plaintiff did not appear in court and defendant’s motion to open the default was granted on plaintiff’s failure to appear. Plaintiff then moved before another justice to vacate and set aside the order originally made which granted defendant’s motion on default.

Plaintiff contends that defendant’s failure to serve the order to show cause as required in said order was jurisdictional and, therefore, he did not have to appear on the return day. This is unquestionably correct. The order had no effect and the court had no power to consider the order to show cause on the return day since its requirement had not been complied with. Plaintiff’s failure to appear, therefore, did not constitute a default and hence the order is appealable.

The order granting defendant’s motion to vacate and set aside the judgment entered against him should be reversed, with costs, and in the light of this result it becomes needless to consider the appeal from the second order, which is dismissed, without costs.

Order granting defendant’s motion to open default and to vacate the judgment reversed, with ten dollars costs, and judgment reinstated. Appeal from order denying motion to vacate the order opening the default dismissed.

Bijur and Mullan, JJ., concur.

Order reversed and judgment reinstated.  