Lazarus v. Boynton

FREEDMAN, P. J. The defendant herein, claiming that he was never served with a process in this action, and not having appeared in the lower court, either in person or by attorney, brings this appeal, and with it submits affidavits, copies of which have been served upon the respondent herein, and asks for a reversal of the judgment- entered against him. The respondent claims that this appeal cannot lie for want of any provision therefor in the Municipal Court Act (Laws 1902, p. 1485, c. 580) that affidavits in support thereof cannot be read, as section 3057, Code Civ. Proc., has no application to municipal courts, and that the appellant’s remedy in a case of this kind is by motion in the court below, and not by an appeal in the first instance. The respondent is in error. This court, in the case of Austen v. Columbia Lubricants Company (Appellate Term, Oct. 1903), 85 N. Y. Supp. 362, Mr. Justice Bischoff writing the opinion, has held that, under section 311 of the Municipal Court Act (page 1578), an appeal lies from a judgment of the Municipal Court on the ground of nonservice of the summons (citing Hurry v. Coffin, 11 Daly, 180); and in the same case, Mr. Justice Freedman writing a concurring opinion, it was also held that in case of such an appeal the provisions of section 3057 were applicable as a method of procedure in determining such appeal. The appellant herein has fully complied with both sections, and, the respondent not having disputed the allegations set forth in the affidavits as to nonsérvice of the process upon the defendant, they must be taken as true, and the judgment reversed. Judgment reversed, with costs. All concur.