In re Scharmann

Ingraham, J.:

The respondent presented to the surrogate a petition alleging that the petitioner’s assignor recovered a judgment against the appellant as administratrix in the City Court of New York for the sum of $2,020.50, no part of which has been paid, and asking that the administratrix be compelled to pay such judgment. The appellant answered this petition by denying the allegations therein, except her appointment as administratrix, and upon this-petition and answer the proceedings came on before the surrogate. The judgment roll in the City Court, which is annexed to the petition, was offered in evidence and was objected to by the administratrix upon the ground that there was no proof of the service of the summons and complaint upon the original defendant; that there was no proof of such service upon the substituted defendant, and that the substituted defendant could not be in default until a complaint had been served upon her. There was no proof annexed to the judgment roll that there had been service of the summons in that action upon any one. Such judgment roll consisted of the summons and complaint; an order reciting the death of the original defendant, substituting this appellant as his administratrix and authorizing the substituted defendant to answer the complaint, with proof of service of this order upon the appellant; an affidavit of the plaintiff’s attorney that no answer, demurrer or notice of appearance had been served or received in pursuance of the requirements of the summons in said action or of the order, and a judgment entered by the clerk for the amount claimed in the complaint, with interest and costs. The action was for unliquidated damages, and the entry of judgment by the clerk without application to the court was unauthorized. (Code Civ. Proc. §§ 420, 1212.)

It is not alleged in the petition that this summons was ever served upon this appellant or that she was ever required, either by a summons or an order, to answer the complaint. Nor does the judgment entered recite such service. It recites the service upon the original defendant more than six days prior to the entry of the judgment, of which, however, there was no proof, and the making of an order continuing the action, and that no answer, demurrer or appearance had been received. It would seem that the court was without jurisdiction to enter a judgment against this appellant because of a failure to answer or appear. To give validity to a judgment of a court of special and limited jurisdiction, all the facts necessary to give the court jurisdiction as well over the subject-matter of the suit as of the parties, must appear in the record. (Frees v. Ford, 6 N. Y. 176.)

It follows that the order appealed from must be reversed, with costs, and the application denied, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Order reversed, with costs, and application denied, with costs.