Durst v. Ernst

45 Misc. 627 | N.Y. App. Term. | 1904

Bischoff, J.

The defendant sought to justify the taking of the plaintiff’s property upon an execution issued on a judgment obtained by default after service of a summons against “ Samuel Dust,” the claim being that the plaintiff was known by that name, and also that he had appeared for the purpose of moving to open his default, taken in that name;

The contention of the plaintiff at the trial was that he was never known as Samuel Dust and that he never authorized an appearance in his behalf upon the motion to open the default.

If “ Samuel Dust ” was not this plaintiff’s name, accord*628ing to any customary designation, the judgment rendered on default, after service of a summons which did not name him, was clearly a nullity and afforded no defense to an action for trespass based upon the defendant’s act in instigating and abetting the seizure of plaintiff’s property (Fischer v. Hetherington, 11 Misc. Rep. 575), but the justice left the case to the jury with instructions to the effect that the defendant was justified, if this plaintiff was the person intended as the individual named in the summons, a proper instruction upon this point being requested and refused.

The question whether the plaintiff had ever authorized a motion to open his default was, apparently, withdrawn from the jury by an instruction that he had appeared upon such a motion, and the court declined to modify this instruction when the plaintiff’s attorney requested the submission of the questions of fact involved in the claim that the appearance was unauthorized.

The charge also tended to the plaintiff’s prejudice in that the jury was practically advised that the defendant’s witnesses, being “ sworn officers of the law,” were entitled to better credit than was the plaintiff.

For the errors referred to there must be a new trial.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.