Altieri v. Trotta , 53 Misc. 649 ( 1907 )

PER CURIAM.

The judgment was taken by default: The defendant appeals on the ground that he never was served with the summons and has never appeared in the action. This claim seems to be supported by a preponderance of proof. The defendant has adopted the proper practice in appealing directly to this court. Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311; Austin v. Columbia Lubricants Co. (Sup.) 85 N. Y. Supp. 362; Diehl v. Steele, 49 Misc. Rep. 456, 97 N. Y. Supp. 1024.

The judgment must be held to be invalid, and reversed, and complaint dismissed, with costs to appellant.