Collins v. Grey — 123 Misc. 227

Majority

p. 227

Harry Collins, Jr., Plaintiff, v. Cora Grey, Defendant.

Supreme Court, Appellate Term, First Department,

April 14,1924,

Headnote

Judgments — motion by defendant to vacate judgment — process — affidavit of process server shows summons was served on defendant while out of city — motion granted vacating judgment where plaintiff failed to file answering affidavits and defendant’s proof was not overcome.

A motion by the defendant for the vacation of a judgment obtained by the plaintiff should be granted where the moving affidavits show that the defendant was in the country at the time when the process server, according to his affidavit, effected service in the city of New York and where the plaintiff filed no answering affidavits to overcome defendant’s proof.

p. 228

Appeal by defendant from an order denying defendant’s motion to set aside a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district.

Jerome C. Jackson, for the appellant.

Charles Moise, for the respondent.

The appellant, upon an order to show cause, moved for the vacation of a judgment obtained by plaintiff over a year before. While in form the motion was to open defendant’s default,, in answering, the affidavit shows that the motion is really to set aside the alleged service of the summons. The supporting affidavit alleges that the defendant, appellant, was in the country for a period from April, 1922, to November, 1922. In the affidavit of the . process server, which is on file in the action, service is alleged to have been made on June 17, 1922, at West Fifty-second street, New York city. There are no answering affidavits. It does not appear, therefore, that defendant’s proof is overcome, and the denial of the motion was error.

Order reversed, with ten dollars costs, motion granted, with ten dollars costs, and judgment vacated.

All concur; present, Bijur, McCook and Crain, JJ.

Order reversed.