Potter v. Katzenbach

88 N.Y.S. 865

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 23, 1904
• Status: Published

Opinion

PER CURIAM.

No one appearing for the defendant named when this cause was called upon the calendar, an inquest was taken, and judgment rendered for the plaintiff. Thereafter Ann E. Katzenbach, named in the title as defendant, by her attorney, took this appeal, and served upon the plaintiff’s attorney notice of argument, together with the affidavit of Miss Katzenbach, who deposed, among other things, that she had never been served with a summons in her life, and had never seen one, and contradicted in detail the material statements in the affidavit of the process server; the affidavit of a servant, who deposed that she received the paper, which she was afterwards informed was the summons above referred to, and which she laid upon the library table; and the affidavit of the attorney himself, stating the 'contents of the process server’s affidavit on file in the office of the clerk of the Municipal Court, Seventh District. Nothing is offered in refutation of the statements in the affidavits submitted. The plaintiff contends that the remedy herein resorted to is unavailable, especially in that an appeal from a judgment by default will not lie unless a motion to open the default has first been made to the justice' before whom inquest was taken. The settled practice is otherwise. See opinions Bischoff, J., and Freedman, P. J., in Austen v. Columbia Lubricants Co., 85 N. Y. Supp. 362.

The judgment appealed from is vacated, with costs and disbursements.