Citation Numbers: 95 A.D. 115, 88 N.Y.S. 532
Judges: Bartlett
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from a judgment taken by default, the defendant not having appeared in the action. The defendant is a corporation, and in the return is an affidavit of the service of the summons upon Mr. Denslow, the president. The sole point upon which the appellant relies, in asking us to reverse the judgment, is that Mr. Denslow was never served with the summons, and that the only service thereof was in fact made upon one George B. Chase, a bookkeeper in the employ of the Sterling Piano Company. If this be the truth, however, the return from the Municipal Court
Attached to the appellant’s brief are several affidavits, verified a day or two before the argument of the appeal, which contain statements tending strongly to show that process in this suit was never served upon the defendant corporation in the manner required by law; but the appellate court cannot take cognizance of the contents of these affidavits in the first instance. They should have been presented to the Municipal Court upon a motion to open the default and vacate the judgment upon the ground that the defendant had never been properly served; and if that application had failed, this court would have had jurisdiction to review the order denying it, upon appeal. (New York Municipal Court Act [Laws of 1902, chap. 580], §§ 253, 257.) As this record stands, however, it contains nothing which would justify us in interfering with the judgment. '
All concurred.
Judgment of the Municipal Court affirmed, with costs.