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Stone v. Smith

61 N.Y.S. 1106 Court N.Y. City Ct. Decision date 1899-12-27 English

Delivered by O’DWYER, J.

Contents

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p. 1106
STONE v. SMITH.
(City Court of New York, General Term.
December 27, 1899.)

Headnote

Vacating Judgment—Special Appearance.
Where defendant appeared specially, and moved to vacate a judgment entered upon substituted service, it was error, upon denying the motion, to grant leave to answer on condition, since this was beyond the subject submitted for determination by the special appearance.
Appeal from special term.
Action by Samuel H. Stone against Samuel W. B. Smith. From an order denying defendant’s motion to vacate a judgment entered upon substituted service, he appeals. Modified.
Argued before SCHUCHMAN and O’DWYER, JJ.
James 0. Bushby, for appellant.
Stern & Singer, for respondent.

The defendant appeared specially herein, and moved to vacate the judgment entered upon grounds enumerated in the order to show cause. The motion was denied, but leave to answer was given upon certain conditions, and the order as entered, and which is appealed from, not alone denied the motion to vacate the judgment, but also provided for leave to answer upon these conditions. The defendant did not ask to have his default opened, and the provision therefor is beyond the subject submitted for determination by the special appearance, and should not have been incorporated in the order. The denial of the motion to vacate was justified; it appearing that the order for substituted service was granted upon sufficient evidence, and the judgment entered upon proof satisfactory to the court directing the entry of judgment.

It follows that the order appealed from should be modified by eliminating all provisions therein contained after the denial of the motion to vacate the judgment, with $10 costs, and vacating the

p. 1107
stay granted in the order to show cause, and as modified affirmed, without costs.

SCHUCHMAN, J., concurs.