
    Louis Maggio, Appellant, v. The Ocean View Cemetery and St. Agnes Cemetery, Respondents.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Appeal — Recitals of record — Mistake in clerk’s return.
    Upon appeal to this court, the recitals of the record must prevail where there is palpable mistake in the return of the clerk of the court below.
    Where a cause, tried in the Municipal Court of the city of New York, is submitted on January 20, and no legal stipulation extending the time of the trial justice to render judgment is-made, and the plaintiff’s attorney expressly requests the trial justice co render judgment within the statutory time fixed by section 230 of the Municipal Court Act, a judgment rendered on March 8, is void.
    Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan. '
    G. L: Maggio, for appellant.
    Herbert H. Walker, for respondent.
   MacLean, J.

The plaintiff, as assignee, sought to recover wages upon a contract for work, labor and services performed, and damages for a breach. From the judgment rendered in favor of the defendants the plaintiff appeals, and, among other objections, raises the question of jurisdiction of the court below to render this judgment. The return made by the clerk recites that the cause was tried on February 28, 1905, as also that the summons was issued on October 8, 1905. Where there is palpable mistake, the record must prevail, and the record herein discloses that the case was closed and decision reserved on January 30, 1905, and that thereafter there was no legal stipulation entered into between the parties to extend the time of the trial justice within which to render judgment. All that appears is that the attorney for the defendants alone stipulated first to extend the time to February twenty-eighth and later to March tenth, while by letter, attached to the record and dated February eleventh, the attorney for the plaintiff expressly requested the trial justice to render judgment within the statutory time. The judgment having been rendered on March 8, 1905, was not within the time fixed by section 230 of the Municipal Court Act, and so void. Lambert v. Salomon, 28 Misc. Rep. 562.

Judgment reversed, with costs to the appellant.

Scott and Dugro, JJ., concur.

Judgment reversed, with costs.  