Broderick v. Saretsky

Appellate Terms of the Supreme Court of New York

Broderick v. Saretsky

179 Misc. 737, 39 N.Y.S.2d 802, 1943 N.Y. Misc. LEXIS 1575

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1943

StatusPublished

This text of 179 Misc. 737 (Broderick v. Saretsky) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Broderick v. Saretsky, 179 Misc. 737, 39 N.Y.S.2d 802, 1943 N.Y. Misc. LEXIS 1575 (N.Y. Ct. App. 1943).

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Opinion

Per Curiam.

The learned court came to the conclusion that , he had no power to review the determination of the referee. We [738]*738believe that he had such power under paragraph b, subdivision 10, of section 7 of the New York City Municipal Court Code, under which the reference was granted, although he would not have under paragraph f of the same subdivision.

The decision of the referee that the summons and complaint were not served on the defendant was against the weight of the evidence. The defendant allowed almost nine years to go by without making this motion. During this period he was examined several times in supplementary proceedings and was fully aware of the judgment which had been entered against him. The inference is irresistible that he had been served and had decided to do nothing about it for all these years, especially in view of his failure to call any corroborating witnesses to sustain his claim of no service.

Nor should the defendant’s default be opened and leave given to appear and answer. Cross laches on his part is a bar. Furthermore, there is no showing of any meritorious defense to the action.

Order vacating judgment reversed, with ten dollars costs, and judgment reinstated. Appeal from other orders dismissed.

McCook, Hammer and Rosenman, JJ., concur.

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Per Curiam.

The learned court came to the conclusion that , he had no power to review the determination of the referee. We [738]*738believe that he had such power under paragraph b, subdivision 10, of section 7 of the New York City Municipal Court Code, under which the reference was granted, although he would not have under paragraph f of the same subdivision.

The decision of the referee that the summons and complaint were not served on the defendant was against the weight of the evidence. The defendant allowed almost nine years to go by without making this motion. During this period he was examined several times in supplementary proceedings and was fully aware of the judgment which had been entered against him. The inference is irresistible that he had been served and had decided to do nothing about it for all these years, especially in view of his failure to call any corroborating witnesses to sustain his claim of no service.

Nor should the defendant’s default be opened and leave given to appear and answer. Cross laches on his part is a bar. Furthermore, there is no showing of any meritorious defense to the action.

Order vacating judgment reversed, with ten dollars costs, and judgment reinstated. Appeal from other orders dismissed.

McCook, Hammer and Rosenman, JJ., concur.

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Bluebook (online)

179 Misc. 737, 39 N.Y.S.2d 802, 1943 N.Y. Misc. LEXIS 1575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broderick-v-saretsky-nyappterm-1943.