101 Misc. 291 | N.Y. App. Term. | 1917
This is an appeal by defendants from an order of the Municipal Court, borough of Brooklyn, third district, dated July 26,1917, denying defendants’ motion to vacate and set aside an execution issued June 22,1917, against their wages and earnings, and to vacate and set aside the judgment entered against them on November 29, 1913.
The summons was issued on November 14,1913, and at the same time a warrant of attachment was granted against the property of the defendants. The proceedings of the marshal thereunder appear by his return, dated November 19, 1913. It is evident from this return that he never made any lawful levy of the attachment, because he did not take the property on which he attempted to levy, and which was capable of manual delivery, into his actual custody, as required by section 78 of the Municipal Court Act as then in force. See Johnson v. Kalisak, 90 Misc. Rep. 597; Anthony v. Wood, 96 N. Y. 180, 186, 187; Robinson v. Columbia Spinning Co., 23 App. Div. 499, 502; 31 id. 238, 241; Fiske v. Parke, 77 id. 422. The obstacle in the way of taking actual custody of a note in Eardon v. Dixon, 91 App. Div. 109, was a legal obstacle, not a physical obstacle. The return states that the premises where the property was were locked up, and that the marshal was unable to obtain admission; and this statement overcomes the previous statement that he had attached and taken into his custody the property in question.
After making this ineffectual levy, the marshal proceeded to make constructive service of the summons, attachment and inventory on the defendants in an attempted compliance with the provisions of section 83 of the Municipal Court Act, as then in force.
‘ ‘ Where the defendant has not appeared, and the summons has not been personally served upon him, and property of the defendant has been duly attached by virtue of a warrant which has not been vacated, the court must proceed to hear and determine the action; but in an action subsequently brought, the judgment is only presumptive evidence of the indebtedness. * * * The execution, issued upon a judgment so rendered, must require the marshal to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property.”
It is clear that the procedure provided for in sections 83 and 91 is in the nature of procedure in rem. Before the court is authorized under such a condition to adjudicate upon the plaintiff’s claim, it must have in its actual custody and power through its marshal some property of the defendant against which its execution can be issued and enforced. Pennoyer v. Neff, 95 U. S. 714, 727, 728. In the case at bar the property attempted to be levied on was never in the actual custody and power of the court, so that it could be sold under its execution. As there was no valid levy of the attachment, the subsequent proceedings for constructive service of the summons, taken in attempted compliance with section 83 of the Municipal Court Act, were void, and there was no valid service of the summons. The judgment was rendered without due service of process and was, therefore, unauthorized and void. See Dixon v. Carrucci, 49 Misc. Rep. 222.
Had the judgment been valid—that is, had the attachment been duly levied — I would still say that the execution against the wages and earnings of the defendants was unauthorized, because the judgment was not enforcible by execution against any other property of defendants, except only such as was act
The next question relates to the appealability of the order. I think it is appealable so far as it denies the motion to vacate the judgment under section 154, subdivision 5, of the present Municipal Court Code; but there seems to be no provision for an appeal from an order granting or denying a motion to vacate an execution separate from an appeal from a judgment. See Mun. Ct. Code, § 155.
The question remains whether the Municipal Court has power to vacate the judgment, because the summons was not properly served. Under the present Code there would seem to be no question that the power and the duty exist to vacate a judgment rendered without due service of process. Mun. Ct. Code, § 129, subd. 1. The Municipal Court Act, as in force when the judgment in question was rendered, afforded two remedies to a defendant who had not appeared in an action to obtain relief against a judgment rendered against him without due service of process. One remedy was by motion to open his “ default ” and have the case set down for pleading, hearing or trial under section 253. Friedberger v. Stulpnagel, 59 Misc. Rep. 498; Roberts & Lewis Co. v. Dale, 74 id. 390;
At the time when the Municipal Court Code took effect the right to appeal from the judgment in the case at bar was, so far as appears, still open, as there is nothing to show that notice of the entry of such judgment had been served on the defendants or either of them. Mun. Ct. Act, § 311. The present Code places no time limit upon the right to employ the substituted procedure by motion in the Municipal Court. Mun. Ct. Code, § 129, subd. 1.
The result is that the order appealed from, in so far as it denies the motion to vacate the judgment, should be reversed, without costs, and the action remitted to the Municipal Court with directions to grant the motion, with ten dollars costs, and that the appeal from so much of the order as denies defendants’ motion to vacate and set aside the execution should be dismissed.
Clark and Jaycox, JJ., concur.