Diossy v. West

8 Daly 298

• Court: New York Court of Common Pleas
• Decided: June 16, 1879
• Status: Published

Opinion

Beach, J.

The supplementary and oth'er proceedings sought to be vacated by the defendant’s motion in the court below, from whose order this ajipeal >vas taken, are founded upon the transcript of a judgment in the city court of Brooklyn, filed in the clerk’s office of the city and county of New York. Neither the formal regularity of that transcript nor of the proceedings taken in this court by virtue of the filing are here questioned. The argument urged in behalf of the appellant affect only the judgment of the Brooklyn court, claimed void for want of jurisdiction, because the referee’s report was outside the issue referred, and the defendants were not served with process within that city. The first objection cannot be raised on this appeal, and would properly have been presented by an appeal from the judgment of the city court. There is no statute conferring upon tins court the authority to review the decisions of that tribunal. It is apparent from the record here that the judgment is unappealed from and unreversed. The other objection is answered by the unquestioned appearance in the action of the appellant, who verified the answer, affidavit of merits, and was a witness on the trial.' In these respects the case at bar differs materially from Ferguson v. Crawford (70 N. Y. R. 255), where the defendant was allowed to show the judgment introduced to bind him was based upon a forged notice of appearance, and he never was served with process or appeared in the action. The latter case does not question the correctness of the decision in Brown v. Nichols (42 N. Y. R. 26), which holds that the judgment of the city court cannot be attacked in this collateral proceéding.

The authorities are numerous that the judgment could not be questioned in the supplementary proceedings, and there is no difference between so doing and making the motion to set them aside, though other relief is sought germain to that object in the case at bar. (The People v. Oliver, 66 Barb. 570 ; O’Neil v. Martin, 1 E. D. Smith, 404 ; Courtois v. Harrison, 1 Hilton, 109 ; Saunders v. Hall, 2 Abb. Pr. 418.)

The order should be affirmed.

J. F. Daly and Vast Hoesen, JJ., concurred.

Order affirmed.