85 N.Y.S. 362 | N.Y. App. Term. | 1903
The argument of the respondent that an appeal may not be taken from a judgment rendered by default in the Municipal Court is founded upon the contention that section, 3057 of the Code, relating to appeals for “error in fact,” no longer applies to that court, because of the effect of the repealing schedule of the Municipal Court act (Laws 1902, p. 1486, c. 580). Whether section 3057 applies, or not, is immaterial, since the right of appeal from judgment by default arose, not from that section, but from the language of section 3046, as judicially construed. Hurry v. Coffin, 11 Daly, 180. And this very language has been adopted for the purposes of appeals from the Municipal Court upon the ground of nonservice of the summons. Municipal Court Act, p. 1578, § 311.
It appears, however, that 'the appellant’s practice in bringing the disputed question of the service of the summons before this court is properly assailed by the respondent. The affidavits for reversal were simply filed upon the call of the calendar, and no opportunity has been given the respondent to answer the matters averred; nor, indeed, was there any notice that the point of authority of the person served to receive the summons for the corporation would be involved upon the appeal. Certainly some reasonable opportunity must be given the respondent to prepare to meet such an appeal. Hurd v. Beeman, 8 How. Prac. 254. And the rule stated by the learned text-writer in 11 Rumsey’s Practice, at page 778, that copies of the affidavit should be served with the notice of argument, appears to us to be the .proper requirement., •
The appellant may renotice the appeals for the next term upon payment of $10, imposed as terms in each case. Otherwise the judgment will be affirmed, with costs. All concur.
