Kramer v. Reed

Appellate Terms of the Supreme Court of New York

Kramer v. Reed

153 N.Y.S. 95

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 13, 1915

StatusPublished

This text of 153 N.Y.S. 95 (Kramer v. Reed) 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

Kramer v. Reed, 153 N.Y.S. 95 (N.Y. Ct. App. 1915).

Pincite

Opinion

PER CURIAM.

Defendant appeals from two orders of the Municipal Court, one denying his motion to vacate and set aside the judgment, and one from an order amending the name of the appellant, which name was in the summons declared to be fictitious, to the defendant’s real name.

[1] The first order was based upon an order to show cause, obtained by the defendant, why the judgment should not be vacated and [96]*96set aside upon the ground that the summons was never served upon him. The issue thus raised was not tried as an issue of fact, but the motion was heard upon affidavits, and was denied. This court has repeatedly held that a judgment in the Municipal Court cannot be vacated upon a motion made for that purpose upon the ground of non-service of process, when the application is not coupled with a request that defendant’s default should be opened. Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503, 120 N. Y. Supp. 100; Phillips v. Albert, 81 Misc. Rep. 131, 142 N. Y. Supp. 325; Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 404.

. [2] The second order appealed from is not contained in the record, and cannot therefore be considered.

Appeals dismissed, with $10 costs.

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PER CURIAM.

Defendant appeals from two orders of the Municipal Court, one denying his motion to vacate and set aside the judgment, and one from an order amending the name of the appellant, which name was in the summons declared to be fictitious, to the defendant’s real name.

[1] The first order was based upon an order to show cause, obtained by the defendant, why the judgment should not be vacated and [96]*96set aside upon the ground that the summons was never served upon him. The issue thus raised was not tried as an issue of fact, but the motion was heard upon affidavits, and was denied. This court has repeatedly held that a judgment in the Municipal Court cannot be vacated upon a motion made for that purpose upon the ground of non-service of process, when the application is not coupled with a request that defendant’s default should be opened. Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503, 120 N. Y. Supp. 100; Phillips v. Albert, 81 Misc. Rep. 131, 142 N. Y. Supp. 325; Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 404.

. [2] The second order appealed from is not contained in the record, and cannot therefore be considered.

Appeals dismissed, with $10 costs.

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Bluebook (online)

153 N.Y.S. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kramer-v-reed-nyappterm-1915.

Opinion

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