Kramer v. Reed

PER CURIAM. Defendant appeals from two orders of the Municipal Court, one denying his motion to vacate and set aside the judgment, and one from an order amending the name of the appellant, which name was in the summons declared to be fictitious, to the defendant’s real name. [1] The first order was based upon an order to show cause, obtained by the defendant, why the judgment should not be vacated and [96] set aside upon the ground that the summons was never served upon him. The issue thus raised was not tried as an issue of fact, but the motion was heard upon affidavits, and was denied. This court has repeatedly held that a judgment in the Municipal Court cannot be vacated upon a motion made for that purpose upon the ground of non-service of process, when the application is not coupled with a request that defendant’s default should be opened. Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503, 120 N. Y. Supp. 100; Phillips v. Albert, 81 Misc. Rep. 131, 142 N. Y. Supp. 325; Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 404. . [2] The second order appealed from is not contained in the record, and cannot therefore be considered. Appeals dismissed, with $10 costs.