Smith v. Oliver

65 Misc. 487, 120 N.Y.S. 73

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1909
• Status: Published

Opinion

Giegerich, J.

The action is to recover the balance upon a judgment alleged to have been obtained by the plaintiff against the defendant in an action in the second District Court of the city of ¡Newark, State of Hew Jersey.

The plaintiff introduced in evidence a certified copy of the record in the Hew Jersey action. This record contained no recital nor proof that process of any sort in -that action was ever served upon the defendant or that he appeared in such action. It was, therefore, error for the trial justice to refuse to allow the defendant to prove that he was never served with any papers in that action. The Hew Jersey record shows that the defendant was not at the time of the rendition of the judgment a resident of the State of Hew Jersey and that he did not appear in the action. The only way then that the plaintiff could have obtained a personal judgment there which would have been binding upon the defendant in this State was by personal service of the process within the State of New Jersey. N. Y. L. Ins. Co. v. Aitken, 125 N. Y. 660, 674, 675, and cases there cited.

In this Hew Jersey action certain property was seized by writ of attachment and sold as belonging to defendant; but, since it does not appear that he was served with process, the judgment is effectual to bind only such property of the defendant as was found within the jurisdiction. It can form no basis for a personal judgment. Ward v. Boyce, 152 N. Y. 191, 195.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Goff and Lehman, JJ., concur.

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