Mears v. North American Brewing Co. — 113 A.D. 41

Majority

p. 41

Camden Mears and Others, Copartners in Business, and Doing Business under the Firm Name and Style of Mears Rubber Company, Respondents, v. The North American Brewing Company, Appellant.

Second Department,

May 4, 1906.

Headnote

Practice — appeal is proper remedy from judgment for plaintiff, entered without service on or appearance by defendant.

When there has been no personal service Of the summons or an appearance -by • the defendant in the action, a judgment for the- plaintiff will be reversed with' costs and the complaint dismissed. • . Appeal from the judgment is the proper remedy.

p. 42

Appeal by the defendant, The ¡North American Brewing Company, 'from a judgment of the Municipal Court of the city óf ¡New York,- borough pf Brooklyn, in favor of the "plaintiffs, rendered on the 27th day of September, 1905.

Fernando Solinger, for the appellant.

’ Henry JB'onüwitz, for the respondents.

The defendant appeals from a judgment of the ¡Municipal Court and .shows by affidavit that .personal service of the summons was not made upon it and that it made no appearance in the action. The respondents do not dispute this,,, and the affidavit of service upon which the judgment was rendered fails to show service on the defendant. An appeal was the proper remedy. (Code Civ. Proc. § -3057; Lazarus v Boynton, 86 N. Y. Supp. 104 .) The judgment of the Municipal Court must be reversed, with costs;

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed, with costs, and complaint dismissed. •