Wolter v. Liebmann

MacLean, J. An order for substituted service was made upon a marshal’s formal certificate of diligent efforts and inability to find the defendant and upon the affidavit of the attorney’s clerk asserting baldly that he had made diligent attempts to serve the defendant, a resident of the city of New York and the wife of H. L. Liebmann (of a given address), but at times living separate from him and recently residing at 501 West One Hundred and Fifteenth street, “ but she has removed her things from the said address,” and that he had made diligent effort to locate her but the place of her sojourn could not be found and, if she is in [518] the city of New York, she avoids service so that personal service could not be made. Obviously these assertions, based upon assurance rather than known facts, were a scanty substitute for the particulars required by section 32 of the Municipal Court Act and, upon scrutiny, would hardly have satisfied the learned justice who granted the order. The motion resulting in the order here appealed from rested, however, not merely upon the infirmities of the original papers, but also upon an affidavit by the defendant’s trustee deposing upon knowledge that the defendant is not a resident of New York but for a year has been a resident of Berlin, Germany, information of which he had given the plaintiffs’ attorney two months ago. Manifestly enough the judgment should not stand. It might not, however, be set aside in such fashion, the remedy respecting the judgment being by appeal. Mun. Ct Act., §§ 310, 311. In so far as the motion was for opening the default, it was cognizable by the learned justice. But an order opening a default is not appealable; and this appeal must be dismissed, with costs. Gildebsleeve and Amend, JJ., concur. Appeal dismissed, with costs.