Moss Realty Co. v. Di Crisci — 107 N.Y.S. 49

Majority

p. 49

MOSS REALTY CO. v. DI CRISCI et al.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

1. Judgment—Default—Remedy—Opening.

The remedy of a defendant served with process against a default lies in a motion to open the same.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 246.]

2. Appeal—Default Judgment.

Defendants not served with process are entitled to the relief against a default afforded by an appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 612, 885.]

p. 50

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by the Moss Realty Company against Francesco Di Crisci, Guieseppe Laino, Emanuele Colluci, and others. From a final order, Di Crisci and others appeal. Appeal dismissed as to appellant Colluci, and order reversed as to appellants Di Crisci and Laino.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

Alexander Lament, for appellants.

James, Schell & Elkus (Edgar J. Treacy, of counsel), for respondents.

The remedy of the defendant Colluci lies in a motion to open his default. The two tenants not served are entitled to the relief afforded by an appeal. The petition does not disclose the relation existing between the tenants, and personal service of the precept should have been made upon them individually. As to the tenants Di Crisci and Laino, therefore, the final order should be reversed.

Appeal dismissed as to appellant Colluci, and final order reversed as to appellants Di Crisci and Laino. •