Thompson v. Rawlston — 116 N.Y.S. 13

Majority

p. 13

THOMPSON v. RAWLSTON.

(Supreme Court, Appellate Term.

April 8, 1909.)

Headnote

Couets (§ 190^[1] )—Municipal Couets—Pboceduee—Review.

The record will be returned to the trial court for amendment, if one can be properly made, where there was an attempted substituted service of the summons and complaint, in which case Municipal Court Act (Laws 1902, p. 1501, c. 580) § 34, provides the order and papers on which it was granted shall be filed six days before the return day of the summons, and the record, while not showing this was done, not showing it was not done.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]

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

Action by Sadie Louise Thompson against Zelma Rawlston. From a judgment for plaintiff, defendant appeals.

Record returned for amendment.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

William F. S. Hart, for appellant.

Service of the summons and complaint herein was attempted to be made by substituted service. The Municipal Court act provides that in such a case the order and the papers upon which the same was granted shall be filed six days before the return day of the summons. Section 34, Municipal Court Act (Laws 1902, p. 1501, c. 580); Dalton v. Mills (Sup.) 91 N. Y. Supp. 734 ; Stephens v. Molloy, 50 Misc. Rep. 518 , 99 N. Y. Supp. 385 . The return in this case fails to show this. The papers bear no indorsement showing that they were filed, but do show that the calendar fee was paid on November 7, 1908, which was three days before the return day of the summons. There is nothing, however, in the record, showing that they were not filed, and an amended return may show that they were filed within the proper time.

The record will therefore be returned to the lower court for amendment, if one can properly be made thereto.