Epstein v. S. Weisberger Co.

Amend, J. The facts in this case are not disputed. On August 27, 1906, a summons was issued out of the Municipal Court against “ The S. Weisberger Company ” and that, together with a verified complaint, was personally served upon Samuel Weisberger, the president of the defendant corporation, within the city of blew York. Upon the return day of such summons, the defendant appeared specially by an attorney who filed an affidavit made by said Weisberger, who testified therein that the defendant was a foreign corporation, having its only place of business in the State of Ohio; that it has no office or place of business in the city of blew'York, and that it had never applied to or received permission from the Secretary of State to do business in this State. This affidavit was evidently designed to traverse the return, although there is no allegation therein that personal service was not made as before stated. The case was adjourned from September 5, 1906, the return day, until September 13, 1906, for what purpose does not appear. Upon the last named day, the defendant failing to appear, the plaintiif took a judgment against it for the amount claimed in the complaint. On the same day the defendant’s attorney made a motion returnable on September 17, 1906, for an order setting aside the service of the summons, upon substantially the same grounds set forth in the affidavit before mentioned; and the justice, being absent on that day, obtained an order to show cause returnable on September 18, 1906, asking for [574] the same relief. This motion seems to have been denied. The defendant thereupon appealed from the judgment, and has made and served affidavits upon the respondent setting forth the same facts, substantially, with reference to the status of the defendant in this State as were contained in the affidavits used upon the motion and hereinbefore referred to; and such affidavits have been handed up upon this appeal. Section 1, subdivision 18, of the Municipal Court Act provides that the jurisdiction of that court “ extends to actions against * * * a foreign corporation having an office in the city of Hew York.” It is clear therefore, that such jurisdiction is limited to such foreign corporations as have an office in the city of new York. Worthington v. London, C. & A. Co., 164 n. Y. 81, 83, 85. The complaint herein avers that the defendant is a foreign corporation, organized under the laws of the State of Ohio, and contains no allegation that it has an office in this city or transacts business therein. It was defective in that respect, and such defect could be taken advantage of by answer. Wyatt v. McNamee, 50 Misc. Rep. 348. We are constrained to hold, that by service of the summons in the manner prescribed by law upon the president of the defendant, it not appearing that he was a non-resident of the city (Mun. Ct. Act, § 31), the court below obtained jurisdiction to proceed in the action; and, that being so, the appeal herein having been taken from a judgment entered by default, the same is not appealable. Brown v. Bouse, 43 Misc. Rep. 72. The defendant’s remedy is to move to open its default in the court below. Gileersleeve and MacLean, JJ., concur. Appeal dismissed, with ten dollars costs.