Iron Clad Manufacturing Co. v. Benjamin E. Smith & Sons

Appellate Terms of the Supreme Court of New York

Iron Clad Manufacturing Co. v. Benjamin E. Smith & Sons

28 Misc. 172, 59 N.Y.S. 332

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1899

StatusPublished

Cited by2 cases

This text of 28 Misc. 172 (Iron Clad Manufacturing Co. v. Benjamin E. Smith & Sons) 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

Iron Clad Manufacturing Co. v. Benjamin E. Smith & Sons, 28 Misc. 172, 59 N.Y.S. 332 (N.Y. Ct. App. 1899).

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Opinion

Freedman, P. J.

This appeal is taken by the defendants from a judgment entered against them by default. The return shows that a summons was issued on the 23d day of January, 1898, returnable on the 3d day of February, 1898, which summons, together with the verified complaint, appears by the affidavit of Benjamin B. Barnett, a person duly deputized to make the service, to have been served upon the treasurer of the defendant corpora[173]*173tion on January 24, 1898. Upon the return day of the summons the defendants did not appear and judgment was rendered against, them.

An appeal was thereupon taken, and the defendants submit affidavits containing statements upon which they ask for a reversal of the judgment upon the ground that the defendants were not served with the summons in this action. This appeal comes within the provisions of section 3057 of the Code of Civil Procedure, made applicable to appeals from Municipal Courts by section 1367 of the Consolidation Act, authorizing appeals from judgments rendered upon default where the appeal is taken for errors of fact. Burkhard v. Smith, 19 Misc. Rep. 31; Empire Hardware Co. v. Young, 27 id. 226.

The return of personal service upon the defendants made out a prima facie case of jurisdiction over the person of the defendants, yet, if the summons was not. in fact served, no jurisdiction could have been in fact acquired. Fitch v. Devlin, 15 Barb. 47.

The respondent does not claim that service of the summons herein returned was made, it appearing that there was handed to and left with the treasurer aforesaid, a summons returnable at a time several days prior to the date of the issue of the summons returned.

No service as required by sections 2878-2879 of the Code of Civil Procedure was, therefore, made upon defendants and the court acquired no jurisdiction, in fact, of the persons of the defendants.

Judgment must, therefore, be reversed.

MacLean and Leventritt, JJ., concur.

Judgment reversed, with costs to appellant.

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Freedman, P. J.

This appeal is taken by the defendants from a judgment entered against them by default. The return shows that a summons was issued on the 23d day of January, 1898, returnable on the 3d day of February, 1898, which summons, together with the verified complaint, appears by the affidavit of Benjamin B. Barnett, a person duly deputized to make the service, to have been served upon the treasurer of the defendant corpora[173]*173tion on January 24, 1898. Upon the return day of the summons the defendants did not appear and judgment was rendered against, them.

An appeal was thereupon taken, and the defendants submit affidavits containing statements upon which they ask for a reversal of the judgment upon the ground that the defendants were not served with the summons in this action. This appeal comes within the provisions of section 3057 of the Code of Civil Procedure, made applicable to appeals from Municipal Courts by section 1367 of the Consolidation Act, authorizing appeals from judgments rendered upon default where the appeal is taken for errors of fact. Burkhard v. Smith, 19 Misc. Rep. 31; Empire Hardware Co. v. Young, 27 id. 226.

The return of personal service upon the defendants made out a prima facie case of jurisdiction over the person of the defendants, yet, if the summons was not. in fact served, no jurisdiction could have been in fact acquired. Fitch v. Devlin, 15 Barb. 47.

The respondent does not claim that service of the summons herein returned was made, it appearing that there was handed to and left with the treasurer aforesaid, a summons returnable at a time several days prior to the date of the issue of the summons returned.

No service as required by sections 2878-2879 of the Code of Civil Procedure was, therefore, made upon defendants and the court acquired no jurisdiction, in fact, of the persons of the defendants.

Judgment must, therefore, be reversed.

MacLean and Leventritt, JJ., concur.

Judgment reversed, with costs to appellant.

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Bluebook (online)

28 Misc. 172, 59 N.Y.S. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iron-clad-manufacturing-co-v-benjamin-e-smith-sons-nyappterm-1899.

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