Majority
p. 634Joseph L. Jackson, Respondent, v. Alexander Lurie, Appellant.
Headnote
Municipal Courts—Procedure — Judgment by default — When complaint is not verified plaintiff must prove his case.Appeal by the defendant from a judgment in favor of plaintiff taken by default in the Municipal Court of the city of New York, Seventh District, borough of Manhattan, and also from an order denying defendant’s motion to open his default.
George W. Simpson, for appellant.
Abraham Goldfarb, for respondent.
We find no occasion to review the decision of the justice below respecting the due service of the nummons,
p. 635
even if that question is properly before us. There is nothing in the record to sustain the plaintiff’s judgment. The complaint was oral and, of course, unverified. It does not apear from the return that any evidence or proof of any kind was taken by the justice as a foundation for his judgment, and there is absolutely nothing to sustain it. Even if we assume that the defendant was properly served and that the judgment was taken upon his default (the most favorable assumption possible for the plaintiff), still an appeal lies from the judgment; and, as there was no proof of the plaintiff’s claim, a reversal must follow. Hurry v. Coffin, 11 Daly, 180 .
Giegebich and Gbeenbaum, JJ., concur.
Judgment reversed and new trial granted, with costs to abide event.
The appeal from the order need not be considered and it will be dismissed, without costs to either party.