#### Emerich Gelb, Respondent, *v.*William E. Cuff, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

Municipal Court — New trial — Conditions imposed on granting.

The Municipal Court of the city of New York has no jurisdiction upon granting a new trial, upon the ground of newly discovered evidence, to impose conditions other than as defined in section 256 of the Municipal Court Act.

Where, upon a motion for a new trial, upon the ground of newly discovered evidence, it appears that after entry of judgment it was discovered that plaintiff, two months before the commencement of the action, had transferred to another as trustee all his business assets, the court exceeds its authority in imposing as a condition of granting a new trial that defendant shall consent in writing that the alleged transferee at plaintiff’s election be either substituted or joined as a party plaintiff. The effect of such procedure would be to permit a new action to be brought against a defendant in violation of section 26 of the Municipal Court Act which limits the jurisdiction of the court over the parties by requiring either “ the service of a summons, or the voluntary appearance of and joinder of issues by the parties ”.

Appeal by defendant from a portion of an order made by the justice of the • Municipal Court of the city of Yew York, twelfth district, borough of Manhattan, granting defendant’s motion.

*166John Reilly, for appellant.

Ira B. Wheeler, for respondent.

Greenbaum, J.

It is not disputed but that the facts set forth in the affidavits of the defendant, upon his motion that the judgment theretofore entered against him be set aside and a new trial granted, on the ground of newly-discovered! evidence, warranted the exercise of the power of the justice in favor of the defendant.

It is, therefore, only necessary to consider the power of the justice to impose, in addition to the payment by defendant of ten dollars costs, and that the judgment entered stand as security, the condition that defendant consent “ in writing that William Bianchi, at plaintiff’s election, may be either substituted or joined as party plaintiff in this action.” The appeal is taken from that portion of the order which imposes the last-mentioned condition.

Section 255 of the Municipal Court Act authorizes the court to grant or deny a motion for a new trial on the ground of newly-discovered evidence, and section 256 defines the conditions which the court may impose for setting aside a judgment in such a case. The Municipal Court is purely a creature of the statute and has no jurisdiction not specially conferred thereby. Leavitt v. Katzoff, 43 Misc. Rep. 27.

The question here presented was substantially involved in the case of Schwartz v. Schendel, 24 Misc. Rep. 701, where this court held that the justice of a Municipal Court exceeded his authority in imposing costs beyond those prescribed by statute upon an application to open a default.

One of the grounds here urged upon the motion for a new trial was, that the defendant, after the entry of judgment, discovered that the plaintiff, two' months before the commencement of this action had transferred to one William Bianchi, as trustee, all his business assets.

If the defendant can show that plaintiff has no standing in court, he will be entitled to a dismissal of the complaint, with costs.

*167The joining of Bianchi, as a party plaintiff, would seem to be purposeless. Either Bianchi or plaintiff is the legal owner of the alleged claim. Both cannot maintain the action.

If Bianchi be the owner the court is virtually compelling defendant to submit to a litigation, which Bianchi may not deem proper to bring, and the court would in effect permit a new action to be brought against a defendant in violar tion of section 26 of the Municipal Court Act, which limits the jurisdiction of the court over the parties by requiring either “ the service of a summons, or the voluntary appearance of and joinder of issues by the parties.”

Bianchi has no standing in this action, and if the facts alleged in the moving affidavits entitle the defendant to the relief desired, as indeed is not denied, then justice requires that the motion be granted upon terms permitted by the statute, and that all conditions in excess thereof be eliminated.

The order should be modified by striking therefrom the portion from which the appeal is taken.

Scott and Levekttbitt, JJ., concur.

Order modified accordingly, and as so modified affirmed, with costs.