Export Flour & Feed Co. v. A. Mishler, Inc.

The defendant appeals from an order “denying the defendant’s motion to vacate and set aside the judgment.” The action was commenced by the service of a summons upon one Henry Siegel, stated in the affidavit of service to be the “treasurer of said A. Mishler, Incorporated.” A judgment was taken against the defendant by default on May 5, 1914, and upon January 26, 1914, the defendant obtained an order to show cause why an order should not be made “vacating and setting aside the judgment heretofore rendered.” Upon the hearing of this motion the defendant submitted affidavits attacking the jurisdiction of the court below, upon the ground that the person upon whom the summons had been served was not an officer of the defendant or connected with it in any way, and asked to have the judgment vacated and set aside solely upon that ground.

[1] It will be observed that the defendant did not submit itself to the jurisdiction of the court, to ask, as it might have done, that its default be opened. Friedberger v. Stulpnagel, 59 Misc. Rep. 498, 112 N. Y. Supp. 89; Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503, 120 N. Y. Supp. 100. Nor was the issue raised by its denial of service set down for trial as an issue of fact. Phillips v. Albert, 81 Misc. Rep. *1025131, 142 N. Y. Supp. 325. The court below, therefore, had no power to grant the defendant’s request. Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 404. The action of the court in denying the defendant’s motion cannot be reviewed in this court by an appeal from the order.

[2] If the defendant had appealed from the judgment, as provided in section 311 of the Municipal Court Act, this court might have determined the appeal upon affidavits. Canelli Wine Co. v. Tassi, 88 Mise. Rep. 573, 151 N. Y. Supp. 46. The appeal, having been made from a nonappealable order, must be dismissed.

Appeal dismissed, with $10 costs. All concur.