
    Ted S. Barron, Respondent, v. Leo Feist, Appellant.
    First Department,
    December 6, 1907.
    Judgment — suit in equity to set aside — adequate remedy by appeal — complaint not stating cause of action.
    A suit in equity to set aside a judgment can be maintained only upon grounds which either could not have been made available to the complaining party at law, or which he was prevented from setting up by fraud, accident or wrongful act of the other party without negligence or fault on his part.
    A complaint in equity to set aside a judgment of the Municipal Court of the city of blew York which does not show that the defendant by fraud or other means induced the justice to enter judgment or prevented the plaintiff from appealing therefrom, but merely alleges that it was void because not rendered by the justice within fourteen days after the submission of the case as required by section 330 of the Municipal Court Act and was entered by inadvertence or mistake contrary to a stipulation of parties, does not state a cause of action, for the plaintiff had adequate remedy by appeal.
    An appeal lies although an inferior court rendered j udgment without j urisdiction.
    Demurrer on the ground that a complaint does not state facts sufficient to constitute a cause of action can be taken in equity as well as at law.
    Appeal by the defendant, Leo Feist, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of May, 1907, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the amended complaint.
    
      
      A. S. Gilbert, for the appellant.
    
      Alfred B. Nathan, for the respondent.
   Houghton, J.:

The amended complaint alleges that in November, 1905, the plaintiff brought an- action in the Municipal Court of the. city of New York to which the defendant interposed an answer, and that upon such action coming on. for trial the .parties entered into a stipulation that they would submit to the justice the question as to whether or not the defendant’s answer contained any defense, and that if the justice decided that it did not, then judgment was to be entered for plaintiff, but that if he decided that it did contain a defense the action was to be sent to another justice for trial. That thereafter and on the 27th day of January, 1906, the justice decided that the answer did contain a defense, and instead of sending the case to another justice of the Municipal Court for trial, in accordance with the stipulation, by inadvertence and mistake he rendered a judgment dismissing plaintiff’s complaint, with costs amounting to twenty-two dollars and forty-one cents, which judgment was entered on that day. The complaint further alleges that such judgment was void because in violation of the stipulation, and because it was rendered more than fourteen days after its submission to the justice, in violation of section 23.0 of the Municipal Court Act. (Laws of 1902, chap. 580), and without a trial of the issues, and that the time to appeal therefrom has passed, and that plaintiff has no .adequate remedy at law to relieve himself from such judgment, and that defendant threatens to lect the same, and asks that such judgment be declared invalid and void, and be set aside and defendant restrained from enforcing the same, -

To this complaint the defendant interposed a demurrer that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled.

The learned trial couit in holding that the complaint stated a good cause of action evidently relied upon an obiter statement in Lackner v. American Clothing Co. (112 App. Div. 438; 98 N. Y. Supp. 376). In that case a justice of the Municipal Court had rendered a judgment irrespective of a' tender paid into court, inadvertently overlooking that.fact. The judgment should have gone for the defendant but was given to the plaintiff. In holding that .the various motions which had been made were ineffectual to relieve the defendant, the learned judge writing the opinion, at its close, remarked that the defendant was not without remedy, for an equity action, would lie to give appropriate relief.

The record in that, case may have contained facts not disclosed in the opinion, but with the broad proposition that an equity action is maintainable to set aside a judgment inadvertently or mistakenly entered by the court without the procurement of the opposite party, we cannot agree.

From necessity, in preserving the stability of judgments and insuring that they shall be reviewed only in the manner prescribed by law, the ground upon which a judgment may be impeached in an equity action is very narrow.

The rule is that impeachment of a judgment can be bad only upon grounds which either could not have been made available to the complaining party at law, or which he was prevented from setting up by fraud, accident, or the wrongful act of the other party without any negligence or fault on his part. ( Vilas v. Jones, 1 N. Y. 274, 281 ; Smith v. Nelson, 62 id. 286; Reich v. Cochran, Nos. 1 & 2, 105 App. Div. 542 ; Merrifield v. Bell, 37 N. Y. St. Repr. 743.)

The complaint does not allege that the defendant by fraud or any other means induced the municipal justice to enter the judgment. On the contrary, it alleges that the judgment' as entered was void, in that it was not rendered by the justice within fourteen days after the submission of the case to him, in accordance with the provisions of section 230 of the Municipal Court Act, which section provides that judgment in that court, when not upon a verdict, must be rendered within such time.

Section 310 of the Municipal Court Act gives the right of appeal from the Municipal Court to the Appellate Term of the Supreme Court.

■ Although an inferior court has rendered a judgment without jurisdiction, the appellate court may so far act as to reverse the judgment for want of such jurisdiction. (McMahon v. Rauhr, 47 N. Y. 67 ; Catlin v. Rundell, 1 App. Div. 157.)

It is not alleged that the plaintiff in this action was prevented by any act of the defendant from appealing from the judgment entered against him. It appears upon the face of the complaint, therefore, that he had' an adequate remedy at law by appeal of which by his own negligence he did not avail himself. The complaint is, not aided by the allegation that the judgment was entered contrary to the stipulation, or without a trial, for the reason that it appears clearly that the plaintiff could have rid himself of it by an appeal to the Appellate Term on the ground that it was rendered more than fourteen days after its submission.

The respondent makes the point that whether or not plaintiff has an adequate remedy at law can only be raised by answer, and that a demurrer is not available for that purpose. This is true where that fact does not appear on the face of . the complaint. That .point is not involved on this appeal, how.ever. The question is not whether plaintiff now has any adequate remedy at law, but whether he did have an adequate remedy at law to rid himself of the judgment and failed to avail himself of it. If he did have-such remedy lie should have pursued it, and not having done so, no action will lie in equity. Of course, a • demurrer lies to a complaint on the ground that it fails to state facts sufficient to constitute a cause of. action in equity as well as at law. (Black v. Vanderbilt, 70 App. Div. 16.)

The interlocutory judgment overruling the demurrer should be reversed, with- costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days on payment of costs in this court and in the court below.

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  