10 Misc. 762 | New York Court of Common Pleas | 1895
This appeal is founded upon an alleged "error of fact, not affecting the merits and not within the knowledge of the justice below” (Code Civ. Proc. § 3057), such error being assigned to the unauthorized entry of an appearance for the defendant (appellant), it not appearing' from the record that he was personally served with the summons, nor is claim made that he was. While it was held in Jourdan v. Healey (Com. Pl. N. Y.) 19 N. Y. Supp. 240, that section 3057 was not applicable to appeals from the district courts, the statement there made was obviously due to an oversight; and, moreover, the- point was not essential to the determination of that case. By section 3213 of the Code, and section 1438 of the consolidation- act (Laws 1882, c. 410), articles 1 and 2 of title 8 of chapter 19 of the Code are made applicable to the district courts, and section 3057 is included in article 1 of such title and chapter.
For the respondent, it is claimed that this court has not jurisdiction to entertain the appeal, it being conceded that the notice of appeal was not served within 20 days after entry of judgment. Code, § 3046, made applicable by section 3213, Code Civ. Proc., and section 1438, Consolidation Act. The last-cited section reads as follows:
“An appeal must be taken within twenty days after the entry of judgment in the .justice’s docket; except that where a defendant appeals from a judgment rendered in an action, wherein he did not appear and the summons was not personally served upon him, the appeal may be taken within twenty days after personal service upon him on the part of the plaintiff, of written notice of the entry of judgment; but not after the expiration of five years from the entry of the judgment,” etc.
In answer, the appellant contends that he had not appeared in the action, and that, therefore, his appeal was properly taken within five