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Altieri v. Trotta

103 N.Y.S. 715 Court N.Y. App. Term Decision date 1907-04-10 English

Contents

Majority

p. 715
( 53 Misc. Rep. 049 )
ALTIERI v. TROTTA.
(Supreme Court, Appellate Term.
April 10, 1907.)

Headnote

Courts—Municipal Courts—Judgment by Default—Appeal.
Under Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311, a defendant against whom judgment was taken by default, and who was never served with summons and never appeared in the action, properly appeals directly to the Appellate Term of the Supreme Court
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Arcangello Altieri against Pasquale Trotta. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before GILDERSLEEVE, P. J., and GIEGERICH and ERLANGER, JJ.
John C. Oldmixon, for appellant.
Frank A. Acer, for respondent.

The judgment was taken by default: The defendant appeals on the ground that he never was served with the summons and has never appeared in the action. This claim seems to be supported by a preponderance of proof. The defendant has adopted the proper practice in appealing directly to this court. Municipal Court Act, Laws 1902, p. 1578, c. 580, § 311; Austin v. Columbia Lubricants Co. (Sup.) 85 N. Y. Supp. 362 ; Diehl v. Steele, 49 Misc. Rep. 456 , 97 N. Y. Supp. 1024 .

The judgment must be held to be invalid, and reversed, and complaint dismissed, with costs to appellant.

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