E. G. Potter Co. v. Sheffield

Judgment affirmed, with costs.

(dissenting). The notice of appeal herein stated that the defendant appeals from the judgment. It is recited in the return that the defendant was personally served with the summons on the return day. Plaintiff and defendant appeared by their -respective attorneys. Plaintiff filed a verified complaint. Defendant moved to set aside service of the summons. The cause was thereupon adjourned until the 9th of June, when the motion to set aside service of the summons was denied, and the cause again adjourned to the 14th of June, when judgment on the verified complaint was rendered against the defendant. Every fact necessary to give jurisdiction is attested, and the appellant is appealing from a judgment taken by default. This he cannot do. Otis v. Spencer, 16 N. Y. 610; Gormley v. Brooklyn R. R. Co., 52 Misc. Rep. 495, 102 N. Y. Supp. 692. Appellant’s whole contention is that defendant had not been served with the summons. This question was submitted to and determined by the trial justice, and this court cannot review his ruling on this appeal. The appeal should be dismissed, with $10 costs.