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Mears v. North American Brewing Co.

98 N.Y.S. 1042 Court N.Y. App. Div. Decision date 1906-05-04 English

Judges Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL-XER, JJ.; All concur.

Delivered by MILLER, J.

Contents

Majority

p. 1042
(113 App. Div. 41)
MEARS et al. v. NORTH AMERICAN BREWING CO.
(Supreme Court, Appellate Division, Second Department.
May 4, 1906.)

Headnote

Courts—Municipal Courts—Appeal—Rendition of Judgment Against Dependant Not Served with Process.
Under Code Civ. Proc. § 3057, providing for affidavits on appeal founded on error in fact not within the knowledge of the court, an appeal from a judgment of the Municipal Court of New York is the proper remedy, where defendant shows by affidavit that the summons was not served on it, and the affidavit of service fails to show a proper service.
Appeal from Municipal Court, Borough of B.rooklyn, Third District.
Action by Camden Mears and others, copartners, doing business under the firm name of the Mears Rubber Company, against the North American Brewing Company. From a judgment for plaintiffs, defendant appeals.
Reversed.
Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL-XER, JJ.
Fernando Solinger, for appellant.
Henry Bonawitz, for respondents.

The defendant appeals from a judgment of the Municipal Court, and shows by affidavit that personal service of the summons was not made upon it, and that it made no appearance in the action. The respondent does not dispute this, and the affidavit of service upon which the judgment was rendered fails to show service on the defendant. An appeal was the proper remedy. Section 3057, Code Civ. Proc.; Lazarus v. Boynton (Sup.) 86 N. Y. Supp. 104 .

The judgment of the Municipal Court must be reversed, with costs.

All concur.