McCrea v. Burnstine ( 1907 )

PLATZEK, J.

This is an appeal from,a judgment entered on.the 21st day of February, 1907, in favor of the plaintiff for $105.72, upon the ground that the summons in the action was not personally served on the defendant and that he did hot appear in the action, pursuant to section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580).

Notice of appeal was filed April 25, 1907. Notice of argument of the appeal and of an application to reverse the judgment on first Monday of June, 1907, with copies of the affidavits upon which the argument and application were to be based attached, were served on the plaintiff on the 25th day of May, 1907. The defendant’s affidavits unmistakably show that he was not served with the summons in the action; that on the 15th day of February, 1907, the date of the alleged service of the summons upon him, he was not within the city or state of New York, having departed therefrom on February 10th for Detroit, Mich., and not returning from that city to New York until February 18, 1907. The plaintiff files an answering affidavit, in which he states that at the time the summons was issued he gave it to one Thomas McLoughlin, a city marshal, for service; that a return was made by the marshal, showing that the same was served; that he appeared in person on the return day, and, no one appearing for the defendant, obtained judgment, upon which execution was issued and returned unsatisfied; that in the month of May, when plaintiff was served with the notice of appeal, he investigated the matter, and discovered that, notwithstanding the return of the marshal to the contrary, he did not serve the summons on the defendant. The plaintiff submits a consent to cancel and vacate the judgment, and asks that the appeal be dismissed, without costs.

The defendant is within his lawful rights in appealing from the judgment on the ground of the nonservice of the summons, and has proven error in fact. Lazarus v. Boynton (Sup.) 86 N. .Y. Supp. 104; Austen v. Columbia Lubricants Co. (Sup.) 85 N. Y. Supp. 362.

Judgment reversed, with costs to appellant, and complaint dismissed. All concur.