Opinion
December, 1907.
Foley Powell, for appellant.
Wilber, Norman Kahn, for respondent.
Upon the return day of the summons in this action, the defendant appeared specially and moved to set aside the service of the summons, upon the ground that no service had been made upon him. Affidavits were presented by the defendant, in support of his contention, and also by the plaintiff in opposition, the contents of which affidavits we shall refer to hereafter. The motion was denied, and an order duly entered to that effect. The defendant not appearing further in the action, judgment was subsequently rendered by default against him. From this judgment the defendant appeals, and in his notice of appeal states that he intends to bring up for review the aforesaid order. Prior to the amendment to section 253 of the Municipal Court Act (Laws of 1907, chap. 304), which took effect September 1, 1907, there existed no authority in that court to vacate a judgment, or set aside the alleged service of a summons, upon the ground that such summons had never been served. Diehl v. Steele, 49 Misc. 456. The amendment referred to has no application to this case. The only remedy given to a defendant, who claimed that he never was served with a summons, was to appeal from the judgment under the provisions of section 311 of the Municipal Court Act. So far, then, as the motion made by the defendant to set aside the service of the summons is concerned, his motion should have been dismissed in the court below. A situation similar to this was presented in the case of Mann v. Meryash at the November Term of this court, and Mr. Justice Bruce writing the opinion of the court said: "The defendant has, however, appealed from the judgment, and for the purpose of disposing of the appeal we may consider it as having been taken under section 311, supra; and we may consider the affidavits submitted by the defendant in the court below, inasmuch as they form part of the return, as being the proof relied upon by him on this appeal to show nonservice of the summons; and, as such affidavits were never served upon plaintiff's attorney and as no notice was given him that the defendant intended to rely upon them on this appeal, an opportunity to controvert the allegations contained therein would be given him, if it was deemed necessary." That is, undoubtedly, the proper practice to follow. It is not claimed by the plaintiff in this case that personal service of the summons was ever made upon the appellant, but that jurisdiction was obtained over him by reason of substituted service. The original summons was issued July 16, 1907. The defendant swears in his affidavit that he "has had no residence in the City of New York since June 27th; that on June 21st, 1907, he disposed of all his business interests in this City and returned to Chautauqua County, his former place of residence, and that he vacated his apartments at No. 418 Central Park West on June 27th, 1907." In this he is fully corroborated by the affidavit of James C. Foley, the defendant's attorney, who gives at length and in detail all the facts relating to appellant's change of residence, etc. Opposed to these unqualified statements is that of one Seelig, a clerk in the office of plaintiff's attorneys, who says that he was given the summons and complaint to serve on July 16, 1907; that "the business address of the defendant Hunt was in the Times Building; that he called there and was informed by the elevator starter that the Hunts had removed but they did not know where." He says that he then ascertained from the directory that one of the defendants resided at the Braender, No. 418 Central Park West, and, upon inquiry there, he was told by the hallman that Hunt was in the country and would return in September. Upon calling again in September, the hallman said that Hunt had removed but he did not know where. An order for substituted service based upon these affidavits was made on October 23, 1907. The statements contained in these affidavits were entirely insufficient upon which to base such an order. Section 32 of the Municipal Court Act provides that "an order for the service of a summons, upon a defendant residing within the city, may be made in the district in which the action is brought," etc. There was nothing in the affidavits upon which the order was based showing that the defendant had either a place of business, or a residence in the city, after a date some time prior to the issuance of the original summons in this action. It is also evident that no further affidavits bearing upon this question could be presented by the defendant that would change the situation. After the return was filed herein, and on the first day of the term, the respondent's attorney handed up an affidavit, in an attempt, evidently, to strengthen the return. This affidavit, even if we could weigh its contents, which we cannot do, has no bearing upon the question at issue. The return as settled by the justice who tried the case is conclusive upon this court, and the practice of handing up affidavits, for the purpose of adding to a return, has been emphatically disapproved by this court. Forman v. N.Y. Transportation Co., 48 Misc. 621.
GILDERSLEEVE and FORD, JJ., concur.
Judgment as to Willard W. Hunt as executor, etc., appellant, reversed and complaint dismissed, with costs.