Guase v. Sterling Piano Co. — 95 A.D. 115

Majority

p. 115

Thomas Guase, Respondent, v. The Sterling Piano Company, Appellant.

Headnote

Appeal from a Municipal Court—affidavits attached to the appellant’s brief, not considered.

On an appeal from an order of the Municipal Court of the city of New York, the Appellate Division will not consider affidavits attached to the appellant’s brief.

Appeal, by the defendant, The Sterling Piano Company, from a judgment of the Municipal Court of the city of New York, borough-of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of February, 1904.

L. Victor Eleckles, for the appellant.

Francis F. Giles, for the respondent.

This is an appeal from a judgment taken by default, the defendant not having appeared in the action. The defendant is a corporation, and in the return is an affidavit of the service of the summons upon Mr. Denslow, the president. The sole point upon which the appellant relies, in asking us to reverse the judgment, is that Mr. Denslow was never served with the summons, and that the only service thereof was in fact made upon one George B. Chase, a bookkeeper in the employ of the Sterling Piano Company. If this be the truth, however, the return from the Municipal Court

p. 116

fails to show it. The return does contain papers from which it appears that after the judgment had been obtained the defendant moved to open its default, upon affidavits from Mr. Denslow and Mr. Chase, but it is. to be observed that while these affidavits aver that the summons in this action was served upon Mr. Chase, they nowhere allege that it vyas not served upon Mr. Denslow, the president of the corporation; and it would have been necessary to convince the Municipal Court of the truth of the latter proposition in order to require it to open the default and set aside the judgment.

Attached to the appellant’s brief are several affidavits, verified a day or two before the argument of the appeal, which contain statements tending strongly to show that process in this suit was never served upon the defendant corporation in the manner required by law; but the appellate court cannot take cognizance of the contents of these affidavits in the first instance. They should have been presented to the Municipal Court upon a motion to open the default and vacate the judgment upon the ground that the defendant had never been properly served; and if that application had failed, this court would have had jurisdiction to review the order denying it, upon appeal. (New York Municipal Court Act [Laws of 1902, chap. 580], §§ 253, 257.) As this record stands, however, it contains nothing which would justify us in interfering with the judgment. '

All concurred.

Judgment of the Municipal Court affirmed, with costs.