54 Misc. 45 | City of New York Municipal Court | 1907
Motion is made to set aside the service of the summons and to vacate the judgment entered by default in June, 1904, upon the ground that the summons was never served. The judgment was assigned and action brought thereon in New Jersey, where the defendant resides. Plaintiff recovered in that action. It is urged by the defendant that the provision of the Constitution of the United States under which full faith and credit are to be given to judicial determinations of sister States does not apply; that, if the New Jersey court was bound to recognize the New York judgment and the New York court in turn bound to recognize the New Jersey judgment, plaintiff would be led in a circle without redress. The only judgment which by the rule of comity is to be honored is a judgment rendered by a court having jurisdiction to enter it. The jurisdiction may always be questioned. The defendant in the New Jersey action raised the issue of jurisdiction. He pleaded specially that he had not been in the jurisdiction of the City Court of New York, and had not been served with the summons, and that this court had no jurisdiction to enter the judgment. On this issue the action came to trial in the Supreme Court of New Jersey in April, 1906, and the jury found a verdict for the plaintiff. An appeal taken by defendant to the Court of Errors and Appeals of the State of New Jersey is still undetermined. The question presented is whether or not the judgment of a sister State which determined that the summons was in fact served in the action theretofore brought in this court should be controlling upon a motion to set aside that alleged service and to vacate the judgment of this court. The plaintiff, in support of his contention, cites McElroy v. Continental R. Co., 6 N. Y. Supp. 306. In that case suit was brought in Pennsylvania upon a judgment entered in New York. Defendant appeared and interposed the defense of payment, admitting that an action “ had been commenced in New York,” and judgment was rendered for the plaintiff. A subsequent motion to set aside the original judgment for want of service of the summons was denied on the ground of laches. Judge Van Brunt said: “It is impossible to conceive that the defendant should have rested quietly under this
Motion denied, with ten dollars costs.