Hotel Touraine, Inc. v. Waite

61 Misc. 54, 113 N.Y.S. 19

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1908
• Status: Published

Opinion

MacLean, J.

The defendant appeals from the judgment rendered herein in favor' of the plaintiff, in an action to recover rent alleged to be due pursuant to agreement, and from an order indorsed on the original papers herein, denying the motion to vacate the writ of attachment issued in this action. Iff either summons nor notice of entry of judgment has ever been served personally upon the defendant, who appeared only for the purpose of the motion. The judgment is, therefore, appealable (Dixon v. Carrucci, 49 Misc. Rep. 222), and likewise the order; and, it not appearing from the original papers upon which the warrant of attachment was issued whether the defendant is or is not a resident of the State, the denial of the motion to vacate the warrant was error, as, by subdivision 2 of section 74 of the Municipal Court Act, it must appear that the defendant is a resident to entitle the plaintiff to a warrant on the ground that the defendant keeps himself concealed to avoid service of the summons. The order must, therefore, be reversed, and the warrant vacated, as also the judgment; for the property of the defendant is no longer duly attached, a prerequisite to the hearing and determination of an action wherein the defendant has not appeared and the summons has not been personally served upon him. Mnn. Ct. Act, § 91. "

Gildersleeve and Seabury JJ., concur.

Judgment and order reversed with costs, and attachment vacated.