Lichter v. Seitzman

BIJUR, J.

This is an action on what is claimed to be conversion, committed by the defendants as copartners. The summons and verifled complaint were served on Jacob Seitzman. An answer was interposed, ostensibly on behalf of all the defendants, by David Seitzman as attorney in person, concededly not an attorney at law. After the trial, judgment by default was rendered against Isaac Seitzman, who was subsequently arrested on a body execution, and is still confined within the jail liberties.

Plaintiff sought to justify appellant’s arrest on the pretext that, although not served with process, he appeared at the trial. On appellant’s motion to open the default and have a new trial, the affidavit of plaintiff’s counsel in opposition alleges that Isaac Seitzman “appeared at the trial”; but the context indicates that this is a mere conclusion, derived from another conclusion, to wit, that an answer was interposed for him (although there is no evidence that the answer of his codefendant was authorized by him). That the statement of his appearance at the trial is only a conclusion is confirmed by the unwarranted misstatement, in the brief submitted on this appeal by plaintiff’s counsel, that his affidavit charges Isaac Seitzman “with having participated in the trial,” although no such expression is contained in the affidavit. Against these inexact allegations stand the positive averments of Isaac Seitzman that he did not know that he was a party to the litigation until his arrest. As he was not served with process, and did not appear in the action, his motion to open the default, involving his discharge from arrest, should have been granted.

The order appealed from, in so far as it denies appellant’s motion to open the default and vacate the judgment against him, is reversed, with costs to the appellant, the order of arrest vacated, and the judgment debtor discharged, and a new trial ordered. All concur.