
    The People of the State of New York ex rel. Harry Tobenkin, Appellant, v. Thomas O’Connell, as Clerk of the Municipal Court of the City of New York, Borough of Manhattan, First District, and Others, Respondents.
    First Department,
    November 12, 1909.
    New trial—Municipal Court — newly-discovered evidence—judgment vacated pending appeal — execution — costs.
    Section 254 of the Municipal Court Act, which requires a motion to set aside a judgment to be made at the close of the trial or within five days after judgment rendered, does not limit the time of a motion to vacate a judgment on the ground of newly-discovered evidence.
    The Municipal Court of the city of New York may vacate a judgment and grant a new trial upon the ground of newly-discovered evidence although an appeal from the judgment is pending in the Appellate Term.
    A judge of the Municipal Court is not debarred„from vacating a judgment on the ground of newly-discovered evidence merely because the record has been returned to the Appellate Term, as the motion is made on newly-discovered facts dehors the record.
    
      The clerk of the Municipal Court of the city of New York is justified in refusing to issue execution on a judgment of that court where the same has been set aside because of newly-discovered evidence although the judgment has been affirmed by the Appellate Term.
    Nor, under the circumstances, is the plaintiff entitled to receive costs awarded by the judgment but deposited with the clerk to perfect the appeal.
    Appeal by the relator, Harry Tobenkin, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of July, 1909.
    
      J. A. Seidman, for the appellant.
    
      Theodore Connoly of counsel [Thomas F. Noonan with him on the brief], Francis K. Pendleton, Corporation Counsel, for the respondent O’Connell.
    
      George M. Welch of counsel [Saxe & Powell, attorneys], for the respondents Powell and Weiler.
   Clarke, J.:

This is an appeal from an order of the Special Term of the Supreme Court denying an application for a peremptory writ of mandamus directed to Thomas O’Connell, clerk of the Municipal Court, First District, Manhattan, to compel him to issue execution in the action of Tobenkin v. Piermont and others upon an affirmance by the.Appellate Term of a judgment entered in said Municipal Court on the 14th of January, 1909, and also that he be directed to pay to relator thirty-two dollars costs awarded by the Municipal Court on said judgment which were paid into.the clerk's office by the defendant pursuant to the provisions of section 311 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1908, chap. 22) upon taking an appeal to the Appellate Term.

After the appeal had been 'taken a motion for a new trial upon the ground of newly-discovered evidence was made under section 255 of the Municipal Court Act before the justice who tried the action. This motion was granted and an order was duly entered on May 4, 1909, setting aside and vacating the judgment. On May seventh the Appellate Term handed down a decision affirming said judgment. Thereafter the attorney for relator applied to the Municipal Court for an order vacating the order granting a new trial and reinstating the judgment. This motion was denied and plaintiff appealed to the Appellate Term from that order, which appeal is still pending.

In this situation respondent "refused to'issue execution upon the affirmance of the judgment by the Appellate Term upon the ground that the judgment which was affirmed had been set aside and was not in existence at the time of the affirmance. As to the thirty-two dollars paid into court the clerk refused to pay then) over because the judgment granting them had been vacated and set aside, and, further, that no order in accordance with section 311 of the Municipal Court Act had been served on him directing him as to the disposition of said thirty-two dollars costs.

Relator claims that the Municipal Court judge had no power to grant a motion to vacate and set aside the judgment and grant a new trial on the ground of newly-discovered evidence at the time he made the order. Section 1 of the Municipal Court Act confers jurisdiction upon the Municipal Court, and provides in subdivision 19 thereof (as atnd. by Laws of 1905, chap. 513) that “ In an action or a summary proceeding, to direct or set aside a verdict, vacate, amend or modify a judgment or final order, rendered or made on consent, confession, inquest or trial, grant a new trial, open a default, or in a proper case grant a new trial on the ground of fraud or newly discovered evidence.” Here is a direct grant of power to vacate a judgment and grant a new trial on the ground of newly-discovered evidence. Relator claims that this power is limited by section 254 of the act which provides that “ A motion to set aside the verdict of a jury and vacate, amend or modify a judgment rendered thereon, or to vacate, amend or modify any judgment rendered upon a trial by the court without a jury, may be made upon the exceptions taken at the trial or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law, provided said motion is made at the close of the trial or within five days from the time the judgment was rendered.” This section is, however, similar to section 999 of the Code of Civil Procedure governing motions for a new trial made upon the judge’s minutes in courts of record. In section 999 the time to make such motion upon such grounds is limited to the same term, and so in section 254 of the Municipal Court Act there is a time limit of five days. But section 255 of the Municipal Court Act provides that The court may also, in a proper case, grant or deny a motion for a new trial on the ground of fraud or newly discovered evidence, and from the order an appeal shall lie as from a judgment in said court.” .

It will be seen that there is no such limitation of time in which a motion under this section is to be made as is provided in section 254 and the reason for the distinction is obvious. The motion under section 254 is made upon the record of the trial. What occurred upon said trial is known and for the prompt dispatch of business and avoidance of delay a short period is given in which to assert whatever rights may be claimed. Such a limitation upon the right to move for fraud or upon newly-discovered evidence would be practically to nullify the right conferred. To hold that a fraud which vitiated the judgment and not discovered within five days cannot be brought to the attention of a court of justice, or that material evidence not discovered within that time may not be availed of, is to say that this important power, conferred by the express terms of the act, is a vain thing. We cannot subscribe to any such doctrine. The only limitation in the statute is that it must be in a proper case, and that refers to the force and effect of the evidence submitted to the judge as a ground for granting the motion.

Delator further claims that as this motion was made after the appeal had been taken the court was without jurisdiction to grant it. The Court of Appeals has held that the pendency of an appeal in that court is not a bar to a motion in the court below for a new trial. (People ex rel. Hoffman v. Board of Education, 141 N. Y. 86; Henry v. Allen, 147 id. 346.) This court held in Vernier v. Knauth (7 App. Div. 57) that it was error to deny a motion for a new trial on the ground of newly-discovered evidence because an appeal from the judgment was pending; and the Appellate Division in the Second Department likewise so held in Smith v. Lidgerwood Mfg. Co. (60 App. Div. 467). McCreery Realty Corporation v. Equitable National Bank (52 Misc. Rep. 300; affd., 54 id. 508, 123 App. Div. 358) is a case in which the lower court granted a motion for a new trial in which the case was on appeal to the United States Supreme Court.

The relator claims that in all of the cases cited the appeals were from courts of record and that the record remained in the court of original jurisdiction and that a transcript only thereof was transmitted to the appellate court. Further, that the Municipal Court is not a court of record and that by section 317 of the Municipal Court Act the clerk of said court is directed to make a return to the appellate court and that “ the return must contain all the proceedings, including the evidence and the judgment,” and that section 326 of said act provides that “ The appeal must be heard upon the original papers or a certified copy thereof and a copy or copies thereof need not be furnished for the use of the court; ” and that section 327 of said act directs the clerk of the appellate court to return to the district of the Municipal Court from which the appeal was taken all the papers on file in his office making up the judgment roll of said action or proceeding. Therefore, he claims that the cases cited are not authoritative on this proceeding because, in consequence of the appeal, the original record was not in the Municipal Court but had been returned to the appellate court and that, therefore, the cause was no longer in the Municipal Court and no motion could be made therein and so the order granting a new trial was a nullity. The effect of holding that this motion was improperly made at the time when the appeal was pending might be, if it had been made after the Appellate Term affirmed the judgment, that the motion would then be denied because of loches in not making it as soon as the evidence was discovered.

While it is true that the return took the original papers constituting the record to the Appellate Term, yet it should be recalled, as pointed but by the Court of Appeals in Henry v. Allen (147 N. Y. 346), the motion for a new trial on the ground of newly discovered evidence is made on facts dehors the record.

In view of the absolute grant of power to entertain the motion without restriction or limit as to time given by the Municipal Court Act, we think the Municipal Court judge had power to entertain the motion and grant the order. As by that order the judgment was vacated, there was no judgment to be enforced by execution and, therefore, the clerk was right in declining to issue execution. Thirty-two dollars were the costs awarded to the plaintiff by the original judgment and were deposited with the clerk as a necessary step in perfecting the appeal; the title thereto of the plaintiff depended, however, upon the judgment and we think that that having been vacated he had no right to compel the payment of said sum so deposited by the defendant, and, therefore, the order appealed from was right and should be affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Houghton and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  