24 N.Y. Civ. Proc. R. 45 | New York Court of Common Pleas | 1894
Judgment for dispossession of the appellant from that certain portion of the premises in question which he held by lease was rendered upon default of his appearance, and the warrant was duly executed. The proceedings were based upon the certificate of a marshal to the effect that the precept had been served upon defendant by delivering the same to and leaving it with a person of suitable age, residing upon the premises, defendant being at the time absent therefrom. Appellant subsequently made motion before the justice to open his default, upon the ground that he was never apprised of the issuance of process; and, in support of this motion, affidavits were presented, which are annexed to the return upon this appeal, verified respectively by appellant, his wife, and their two children, it appearing therefrom that the precept was not served upon any one of the affiants. The justice denied the motion expressly upon the ground that he possessed no power to open the default, and, from the order thereupon entered, it appears that no examination into the merits of the application was made. This appeal was taken from such order, and from the final order for dispossession.
A judgment rendered upon default of appearance in a district court is appealable to this court, notwithstanding the power conferred upon the justices to open defaults on motion (Hurry v. Coffin, 11 Daly, 180); and in view of the provisions of section 2360 of the Code, whereby final orders in summary proceedings are, in nature, assimilated to judgments, for purposes of review (Moench v. Yung [Com. Pl. N. Y.] 9 N. Y. Supp. 637), the case first cited is an authority for the proposition that such "'a final order,' when obtained by default, is none the less appealable. It would appear that the jus
The appeal from the final order, however, suffices to present the question raised by appellant in the court below (Code Civ. Proc. § 3064; Hurry v. Coffin, supra), and the matter is to be determined upon the affidavits incorporated in the return. We are constrained to hold that these affidavits are insufficient for the purpose intended, and cannot avail against the marshal’s certificate, which, in form and substance, fulfills the statutory requirements essential to the validity of the order made. Code Civ. Proc. § 2240. For all that is alleged in these affidavits, as matter of fact, the service may well have been made as certified to by the marshal, and the presumption of regularity which attaches in support of the judgment cannot be here deemed to have been successfully rebutted. This is not, as was Waring v. McKinley, 62 Barb. 612, a case where a direct return of personal service was made, and successfully impeached; and, furthermore, the appellant here fails to present any defense to the proceeding, which omission this court has held to be fatal to an appeal of this character. Jewell v. Heinzel, 6 Daly, 411. The final order must be affirmed, with costs. Appeal from order denying defendant’s motion dismissed, without costs.
