Roth v. Light

PER CURIAM. In September, 1905, a summons and complaint was issued in the City Court in which Samuel Weisman was named as one of the defendants; the name “Samuel” being stated to be fictitious. It is claimed by the plaintiffs that service was made upon one Simon Weisman, and it is not disputed but that he was the person intended to be the defendant. Later on one Fried, an attorney, served an answer on behalf of Samuel Weinman and another defendant named Mirbach. The answer being verified by Mirbach, the case appeared upon the City Court calendar in April, 1909. Simon Weisman, through an attorney named Fine, submitted an affidavit of a physician as to his illness and obtained an adjournment of the trial. On April 26, 1909, a judgment was taken against the defendants named in the summons by default. In August, 1911, an order for examination in supplementary proceedings was served upon Simon Weisman. He immediately made a motion for an order setting aside the judgment and vacating the order for his examination. He served with his motion papers an affidavit in which he swore that he had never been served with a summons of. complaint in the action and that he had never authorized Fried to serve an answer in his behalf or to appear for him in any way. The court thereupon appointed a referee to take proof upon this question and report his conclusions. All the interested parties appeared before the referee and a large amount of testimony was taken. The referee found as a fact that the defendant Simon Weisman had been “served with the summons and complaint in the action and that he had duly appeared in the action by an attorney.” The court below, in its order denying the defendant’s motion, recites that it read the testimony; and the objection made by the appellant herein,, that the testimony upon the disputed questions of fact was not properly before the court, is therefore without merit. [1] The objection that the finding is against the weight of evidence and that there is no evidence to support the determination of the court is equally untenable. The testimony given and the reasonable inferences to be drawn therefrom justified the referee and the court in holding that Simon Weisman was served, and also that he authorized [603] an attorney to interpose an answer in his behalf, and it is not disputed that he authorized the attorney, Fine, to appear for him and obtain an adjournment of the trial of the case. [2] The judge granting the order for the examination of Simon Weisman in supplementary proceedings, however, had no jurisdiction under the facts alleged in the affidavit upon which it was based, as there was no allegation therein that an execution had been issued out of the proper court. Shannon v. Steger, 75 App. Div. 279, 78 N. Y. Supp. 163. It does not appear that any change was ever made in the title of the action; the judgment still remaining against Samuel Weisman. This should be done in the lower court. The order denying the motion to vacate the judgment must be affirmed, without costs, but with disbursements. The order denying the motion to vacate the order in supplementary proceedings must be reversed, and the order vacated and set aside; but, as the record does not show that the question of jurisdiction was raised in the lower court, the reversal is without costs. All concur.