Canelli Wine Co. v. Tassi

Lehman, J. I entirely agree with Mr. Justice Whitaker that the practice of permitting appeals from judgment taken on default which requires the appellate court to take the responsibility of passing in the first instance upon disputed questions of fact is entirely anomalous and this very case is a glaring instance of the evil to which such practice leads. The plaintiff in this case claims that he has served James Tassi, and upon proof of such service has obtained a judgment by default. James Tassi now comes in and by aEdavit shows that he has not been served and that the Municipal Court has no jurisdiction over his person. While the matter comes up on opposing aEdavits, [574] I feel that there can be no reasonable doubt but that the plaintiff served'some relative of James Tassi and not James Tassi and that consequently the Municipal Court acquired no jurisdiction of James Tassi’s person. On the other hand, there is also no reasonable doubt but that the plaintiff was misled into the honest belief that he had served James Tassi, the appellant, by the willful misstatements of Tassi’s own relatives, acting for his benefit, even if not by his authority. If James Tassi were required in the first instance to move in the court where judgment was entered to vacate this judgment entered without jurisdiction, by reason of plaintiff’s honest error induced by the misconduct of parties acting in defendant’s behalf, the defendant would gain little benefit from such misconduct for.the court could promptly place the parties in thó position in which they originally were without imposing costs. On the other hand, if this defendant has the right to take this appeal, he not only gains the advantage of the delay incident to an appeal and the advantage of having the question tried out on affidavits without a cross-examination which might show his connivance of his relative’s misconduct but also under the statute he is entitled to costs against the plaintiff who has at' all times acted with propriety and reasonable care. However, though I strongly concur in the view that the appellant’s practice is logically wrong in that it imposes a duty upon an appellate court which it cannot satisfactorily accomplish and gives the defendant an unjust advantage, the question which we must determine is solely whether the legislature has by express statute provided such practice. If it has done so, then this court must enforce the statute and the responsibility of authorizing the practice rests solely with the legislature and the patent abuses consequent upon such practice can be remedied only by the legislature. [575] This court has had that question presented to it frequently in the past and in a line of decisions too long to be set out in full has held that the practice used by the appellant is correct and that he could not move in the Municipal Court to vacate the judgment and dismiss the complaint. See cases cited by Mr. Justice Whitaker. Even if I were doubtful of the correctness of these decisions, I should still follow them as binding-authority. I of course do not contend that the principle of stare decisis absolutely binds any court to follow its earlier decisions if it has become convinced that these decisions are erroneous. I do, however, maintain that in a court such as this court, where the justices are changed month by month the bar is entitled to know that the practice of the court established by successive decisions through a period of years is fixed and will not be affected by the personnel of the court during the particular month in which the appeal is argued. A court which in one month holds that a motion to vacate a judgment and dismiss the complaint cannot be made in the Municipal Court and in the next month may hold that such a motion must be made there and whose determination of the question presented rests solely upon the reasoning of the particular judges then sitting, without any limitation imposed by previous decisions, would, I think, necessarily produce an intolerable condition of confusion where lawyers and judges in the inferior court would be acting without definite rule of knowledge. In this case, however, I do not wish to intimate that even if the question presented were a novel question, I should not reach the same conclusion as this court has reached in the earlier cases. To my mind, the opinion of Mr. Justice Bishoff in the case of Austen v. Columbia Lubricants Co., 85 N. Y. Supp. 362, shows conclusively that this court could not logically decide [576] the matter differently. As was pointed out in that case, section 3046 of the Code of Civil Procedure was bodily incorporated into the Municipal Court Act. Previous thereto that section of the Code had been judicially construed as giving a right of appeal where the defendant had not been served. See Hurry v. Coffin, 11 Daly, 180, and cases there cited. When the legislature saw fit to incorporate this section of the Code into the Municipal Court Act it did so with presumptive knowledge of the judicial construction previously given to that section and it follows that it intended to give a right of appeal to a defendant who had not been served, especially since it failed to give the Municipal Court any power to vacate a judgment and dismiss the complaint in an action where the defendant has not been served and has not submitted himself to the jurisdiction of the court. Friedberger v. Stulpnagel, 59 Misc. Rep. 498. The legislature has consequently not only authorized such an appeal but by section 3057 of the Code has prescribed the exact practice followed by the defendant here as the proper procedure upon an appeal from a Justice’s Court. That section of the Code is also applicable to the Municipal Court. Lazarus v. Boynton, 86 N. Y. Supp. 104. It follows that the judgment must be reversed, wffh costs, and the complaint dismissed, with costs. Delany, J., concurs.