Sayer v. MacDonald

The affidavit proves a judgment recovered in the city court, and it was not necessary to allege that the city court is a court of record. The Code supplies proof of that fact. It was not necessary to allege that no previous application had been made for the order (Shank agt. Conover, *12056 How. Pr., 437). The only other point made by the appellant is that the affidavit does not allege that the judgment was recovered upon the personal service of the summons on the defendant or on his appearance (Code, sec. 2458). The Code is silent as to how this fact is to be established when called in question, and the inference is that the judgment-roll, which proves itself, is the evidence to which resort must be had.

The judgment on which the plaintiffs found their supplementary proceedings was, as before remarked, recovered in the city court, which on inspection proves “ that the summons was personally served on the defendant on the 12th of August, 1884, at 1556 Third avenue, in the city of New York.” The judgment-roll on file proves the requirements of section 2458 (supra) in regard to personal service. The roll is referred to in the affidavit, and may be inspected to sustain the order. We are of the opinion, therefore, that the order appealed from should be affirmed, with costs.

Nehrbas and Hyatt, JJ., concurred.