Edel v. McCone — 31 N.Y. St. Rep. 553

Majority

p. 553

Charles Edel, App’lt, v. Alexander C. McCone, Resp’t.

(New York Common Pleas, General Term,

Filed June 2, 1890.)

Headnote

1. District court—Default—When mat be opened.

An inquest taken in a district court upon proof of personal service of the summons offered by plaintiff is a trial within the meaning of § 1367

p. 554

of the consolidation act and the court has power thereunder to open the default on the ground that the summons was not served. In such case the plaintiff is estopped from claiming that that section did not apply as the court had no jurisdiction of the case hy reason of such non-service.

3. Same—Judgment.

The filing of a transcript of a district court judgment does not make it a judgment of the common pleas for any other purpose than for its enforcement; in all other respects it remains a district court judgment.

Appeal from a judgment of the district court of the city of New York, in the tenth judicial district, dismissing the plaintiff’s complaint.

J. F. Meyer, for app’lt; William F. Browne, for resp’t.

This action was commenced by the issuing of a summons November 27,1889, and the defendant not being served an alias was issued, and on the 13th of December, 1889, returned with proof of personal service. Defendant did not appear, and plaintiff took judgment by default for $52.50. On the 11th of January, 1890, the justice of that court on the application of defendant, and on his affidavit setting forth that the summons had not been served upon him, granted an order to show cause why the judgment taken on the 13th óf December should not be vacated and set aside. The only ground upon which the motion to vacate the judgment was made was that no summons or copy summons had ever been served upon the defendant. The motion was heard by the justice on the 7th of February, 1890, plaintiff’s counsel not putting in any affidavit and not .controverting defendant’s claim of non-personal service of the summons, but opposing the motion on the ground that the court had no jurisdiction to vacate and set aside the judgment, as it had been "entered by default and the court had never acquired jurisdiction. The justice granted the motion, vacated the judgment, and set the cause down for trial on February 14, 1890; on which day both parties appeared by their counsel. Plaintiff’s counsel refused to proceed with the trial, on the ground that the court had no power to open the judgment for the reason above set forth. Thereupon the justice, upon motion of defendant’s counsel, dismissed the case, with seven dollars costs. Hence this appeal.

By § 1367 of the consolidation act, it is provided that any justice may, upon a motion made before him, set aside any default made in any action tried before or by him. Appellant’s counsel contends that this only applies to cases where he has actually acquired jurisdiction, and in this case he had not obtained such, jurisdiction, by reason of the non-service of the summons.

But we think he is stopped from making this claim because the justice only acted on the proof of the personal service of the summons upon defendant offered by plaintiff, and that the inquest taken upon such proof was a trial within the meaning of that section, and therefore the court had the power to open that default and the defendant was not driven to the necessity of an appeal, although he had that remedy, -nor to an action in equity to get rid of the judgment. Appellant also claims that a transcript of the judgment having been filed, it was no longer a judg

p. 555

ment of the district court. But the court of appeals has held that the filing of a transcript does not make it a judgment of this court for any other purpose than for its enforcement; that it remains a judgment of the district court.

The judgment of dismissal should therefore be affirmed, with costs.

Larremore, Ch. J., and Bookstaver, J., concur.