Majority
p. 866Pauline Kahn, Resp’t, v. Joseph S. Lesser, Impl’d, App’lt. (City Court of New York, General Term, Filed October 22, 1891)
Headnote
Judgment—Jurisdiction—Appearance.The record of a judgment recovered in Wisconsin against defendants, who were residents of this state, showed that no service of summons was made but that an attachment was issued, on the return of which defendants appeared by attorney; that judgment was render d for defendants; that an appeal was taken and on a new trial in the appellate court the defendants appeared by the same attorneys and a judgment was_ recovered against them. In an action on the judgment defendants denied having authorized such appearance. Held, that presumptively the attorneys who appeared had authority to do so, and whether they had or not was a question for the jury.
p. 867
Appeal from judgment entered in favor of the plaintiff upon •a verdict of a jury and also an appeal from an order denying a motion to set aside the verdict and for a new trial upon the judge’s minutes on all the grounds stated in § 999 of the Code of Civil Procedure.
This action was brought by plaintiff to recover the sum of $156.10, with interest thereon from June 13, 1888.
The plaintiff’s complaint alleged that about August 19, 1887, the defendants were co-partners, doing business in the city of JSTew York under the firm name of Lewis, Cable & Lesser.
That at that time the plaintiff commenced an action against the defendant’s firm in a justice’s court in and for the city of Milwaukee in the state of Wisconsin for the recovery of $107.58 for money expended for said defendants, and in that action the defendants duly appeared by their attorneys, Fiebing & Killilea.
That afterwards and on or about October 28, 1887, the action ■came on for trial and resulted in a verdict in favor of defendants.
That afterwards the plaintiff appealed from said judgment to the superior court of Milwaukee, Wisconsin, and under the provisions of the laws of said state of Wisconsin the superior court was created and vested with full power and jurisdiction to hear, try and determine all actions pending in said county court on January 1, 1888, and that on January 1, 1888, the said action between plaintiff and defendants was then pending in said court aforesaid.
That thereafter and on or about June 13, 1888, the action came on for trial, the said defendants again appeared and were duly represented by their attorneys, the said Fiebing & Killilea, and that on the said trial the judgment of the justice was reversed and a judgment against defendants entered in favor of the plaintiff for the sum of $156.10.
The defendant Lesser’s answer denied the defendant’s co-partnership, denied that the defendants appeared by Messrs. Fiebing & Killilea, their attorneys, in said action, and denied that when the said cause (if any there was) came on for trial in the superior court, the defendants-again appeared by said Fiebing & Killilea, their attorneys.
It also denied any .knowledge of the instituting or progress of the suit in Wisconsin.
And for a further and distinct defense alleged that the defendant, Lesser, during all the time mentioned in the complaint was a resident of the city and county of Mew York and was never personally served with any procéss in any action brought by plaintiff, nor did he voluntarily appear in any such action, nor did he authorize any one to appear for him therein, nor did he in any manner or form submit to the jurisdiction of the court in which such action was pending or transferred to.
The trial was had before Mr. Justice John Henry McCarthy and a jury.
The plaintiff relied wholly on the foreign judgment roll together with the deposition of one Stephen W. Granger, who in -effect testified to the force and effect of the laws, rules and regu.
p. 868
lotions of the laws of Wisconsin, and further testified to the proceedings instituted by him on behalf of plaintiff, and to the effect, that the money that was garnished in the hands of Espenheim and Bartels was released and the garnishees were discharged and that, nothing has been collected on the judgment, and the whole amount remained unpaid, and rested his case. The judgment roll recited the non-service and non-residence of the defendants.
The defendant at the close of the case moved for a non-suit,, and finally for a direction of judgment in his favor, all of which was denied him by the trial judge.
H. Joseph, for app’lt; Paul Jones, for resp’t.
The record shows that the Wisconsin-court-had jurisdiction of the subject matter of the action pending therein, and acquired jurisdiction of the defendants, after publication, by their voluntary appearance.
Presumptively, the attorneys who appeared for the defendants-had authority so to do, and whether they had or not was a question for the jury, and they found for the plaintiff. The jury evidently disbelieved the defendants. No error having been committed at the trial, and the case having been submitted to the-jury as fully as the defendants requested the submission of the same, it follows that the judgment entered on their verdict must, be affirmed, with costs.
Van Wyck and Newburger, JJ., concur.