Farber v. Tannenbaum

105 Misc. 301

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1918
• Status: Published

Opinion

Weeks, J.

This is an appeal from an order vacating and setting aside a judgment entered in favor of the plaintiff and against the defendant Max Tannenbaum. The motion was made upon the ground that the court had no jurisdiction to enter the judgment for the reason that, at the time the notice of trial was served, the other defendant in the action, who was named in the summons as Mrs. Max Tannenbaum, had not been served and that the notice of trial had been returned for that reason. The order appealed from also opened the defendant’s default.

The verified complaint alleged that between the 6th day of April, 1918, and the 24th day of April, 1918, the plaintiff at the special instance and request of the defendant Max Tannenbaum, performed work, labor and services and furnished materials to Mrs. Max Tannenbaum, wife of the defendant Max Tannenbaum, for which he promised and agreed to pay the sum of $243.

Although Mrs. Tannenbaum was named as a defendant in the summons, the complaint fails to state any cause of action against her.

Service was made upon the defendant Max Tannenbaum and on May 22, 1918, he served and filed a verified answer. On June seventh a notice of trial for June twelfth was served by mail on the attorney, for Max Tannenbaum which was returned as not having been served in time. On June tenth an order for substituted service on the defendant Mrs. Max Tannenbaum was obtained which was vacated on June fourteenth, the attorney for her husband appearing specially for her for that purpose. On June seventeenth a new notice of trial for June twenty-fifth was served, receipt of which was admitted in writing by defendant’s attorney, who returned it on the same day “ on the ground that the case is not yet at issue against the defendant Mrs. Max Tannenbaum, wife of defendant Max Tannenbaum and this action cannot be noticed for trial until it is at issue against all defendants.”

On June twenty-fifth an inquest was taken and judgment rendered in favor of plaintiff, the title of the action showing that Mrs. Max Tannenbaum was not served.

Under the provisions of section 127 of the Municipal Court Code the court had full power and authority to enter a judgment against the defendant Max Tannenbaum. An order of severance was not necessary except to protect plaintiff’s rights against the other defendant.

The defendant’s motion was not to open a default which had been suffered unintentionally or for which any reasonable legal excuse was offered but was to vacate a judgment which it was claimed was entered without jurisdiction. The court had acquired jurisdiction of the defendant and the cause was properly noticed for trial and .the judgment táken upon the inquest should not have been disturbed.

The order therefore must be reversed, with ten dollars costs, and the judgment reinstated.

Order reversed, with costs.