#### John Trainor, Respondent, *v.*Furlong-Tompkins Company, Defendant. Louis Keller, Appellant.

(Supreme Court, Appellate Term,

December, 1911.)

Municipal Courts — Procedure — Vacation of judgment — Grounds.

The Municipal Court' of the city of New York has no power to vacate a judgment in favor of a defendant on the ground that it was rendered through inadvertence, and an order of the Municipal ; Court to that effect will be reversed on appeal.

Appeal by the defendant Keller from an order of the Municipal Court of the city of Mew York, borough of Manhattan, second district, vacating and setting aside a judgment entered herein in favor of the said defendant and also from a ■judgment of the said court rendered in favor of the plaintiff after the vacating of the first judgment.

Alfred B. Bunnell, -for appellant.

Bergman & Davis (Henry K. Davis, of counsel), for respondent.

Lehman, J.

It appears from the return that, on the 4th day of May, 1911, judgment herein was entered in favor of both these "defendants. More than five days thereafter a motion was made to set aside this judgment. This motion was granted and trial set for June first. At that trial the plaintiff obtained judgment against the defendant Keller, and he appeals from both the judgment and order. The re*455'turn states that it was intended that the original judgment should he entered only in favor of the defendant Furlong-Tompkins Company. Through inadvertence it was entered in favor of both defendants. It is claimed that, since the original judgment was entered against Keller by inadvertence the judgment may be vacated at any time. This in my opinion should be the law, but unfortunately it is not the law. The respondent relies for his authority upon the case of Barron v. Feist, 51 Misc. Rep. 589, where likewise the trial justice inadvertently entered an erroneous judgment, and the court held that section 254, which requires that a motion to vacate a judgment must be made within five days, does not apply to a judgment entered by inadvertence; but the respondent has overlooked the fact that the court there nevertheless reversed the judgment because there is apparently no power in the Municipal Court to set aside a judgment entered by its own inadvertence, unless it can do so under section 254, because it is contrary to law. The same result was arrived at upon the same reasoning by the Appellate Division of the second department in the case of Lackner v. American Clothing Co., 112 App. Div. 438. It follows that we cannot, on this appeal, examine the merits of the judgment but must reverse the judgment and order and reinstate the judgment previously rendered. The duty of this court is to decide'what powers the Municipal Court has received under the statute, and it has no right to extend these powers by judge-made law. It is, however, in my opinion unfortunate that the statute has so restricted the power of the Municipal Court that, in many instances, a suitor in what has been denominated the “ poor man’s court ” must seek by an expensive appeal a remedy which the trial justice would and should grant without an appeal.

Judgment and order should be reversed, with costs, and previous judgment reinstated.

Giegerich and Pefdletof, JJ., concur.

Judgment and order reversed, with costs, and previous judgment reinstated,