City of New York v. Burns — 107 N.Y.S. 742

Majority

p. 742

CITY OF NEW YORK v. BURNS.

(Supreme Court, Appellate Term.

December 20, 1907.)

Headnote

Appeal—Appealable Order.

An order amending the summons in the Municipal Court by changing its date of issue is not an appealable one, and can only be reviewed by appeal from the judgment, taken after appearance and due objection made to its being granted, which appeal is provided for by Municipal Court Act, Daws 1902,. p. 1578, c. 580, § 311.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, 5 654.]

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

Action by the city of New York against Frank B. Burns. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and McCALL and FORD, JJ.

Robert L. Turk, for appellant.

Francis K. Pendleton (John P. O’Brien and Louis Gans, of counsel), for respondent.

The defendant appeals from a judgment rendered

against him on the 12th day of June, 1907, in favor of the plaintiff, ■and claims that no summons was ever served upon him. He also appeals from an order made in the court below, amending the summons by changing its date of issue from March 30, 1906, to March 28, 1906. The order -is not an appealable one, and could only be reviewed by an appeal from a judgment taken after appearance and due objection being made to its being granted. The appeal from the judgment is provided for by section 311 of the Municipal Court act (Laws 1902, p. 1578, c. 580). The affidavits submitted on the part of the defendant amply support his contention that he was never served with process, and the judgment must be reversed.

Judgment reversed, with costs, and complaint dismissed.