
    Kiefer v. Grand Trunk Ry. Co. of Canada.
    
      (Supreme Court, General Term, Fifth Department,
    
    December, 1889.)
    Judgment—Opening—Inherent Powers op Court.
    The power of a court to open a judgment, for sufficient reason, in furtherance of justice, is inherent in the court, and not limited by Code Civil Proo. N. Y. § 724, which provides that the court may, in its discretion, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.
    Appeal from special term, Erie county.
    Mary Kiefer, as administratrix, sued the Grand Trunk Railway Company of Canada, to recover damages for the death of Joseph Kiefer, alleged to have been caused through defendant’s negligence. Plaintiff’s complaint was dismissed, and judgment for costs entered against her, by reason of default. The court afterwards made an order opening the judgment, and defendant appealed.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      George F. Brownell, for appellant. J. W. Russell, for respondent.
   Macomber, J.

The affidavits in behalf of the plaintiff, used upon the motion, were sufficient to enable the special term to grant the relief asked for, provided that there is no statutory limitation of the power of the court in the premises. The motion was made upwards of a year and three months after the default was taken. Section 724 of the Code of Civil Procedure permits the court in its' discretion, upon proper terms, at any time within one year after notice thereof, to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. It is argued by the counsel for the appellant that this provision of the Code restricts the power of the court to relieve a party against a default unless the motion is made within one year from the time that the default is taken. There are, however, several decisions of the court of appeals which hold that the power of this court to relieve a party from a judgment so taken is not limited by this section of the Code, but that, in the exercise of its control over its judgments, the court may open a judgment upon the application of any one, for sufficient reason, in the furtherance of justice. This power is inherent in the court, and is not dependent upon any statute, and the section of the Code above referred to does not circumscribe its powers. Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. Rep. 842; Hatch v. Bank, 78 N. Y. 490; Vanderbilt v. Schreyer, 81 N. Y. 648. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.  