Jackson v. Lurie

49 Misc. 634, 97 N.Y.S. 1040

Opinion

Scott, J.

We find no occasion to review the decision of the justice below respecting the due service of the nummons, even if that question is properly before us. There is nothing in the record to sustain the plaintiff’s judgment. The complaint was oral and, of course, unverified. It does not apear from the return that any evidence or proof of any kind was taken by the justice as a foundation for his judgment, and there is absolutely nothing to sustain it. Even if we assume that the defendant was properly served and that the judgment was taken upon his default (the most favorable assumption possible for the plaintiff), still an appeal lies from the judgment; and, as there was no proof of the plaintiff’s claim, a reversal must follow. Hurry v. Coffin, 11 Daly, 180.

Giegebich and Gbeenbaum, JJ., concur.

Judgment reversed and new trial granted, with costs to abide event.

The appeal from the order need not be considered and it will be dismissed, without costs to either party.