#### Samuel Castell, Plaintiff-Respondent, *v.*Sterling Fire Insurance Company, Defendant-Appellant.

(Supreme Court, Appellate Term,

November, 1910.)

Municipal Courts — Review: Judgments and orders «viewable: Amendments and additional proofs — Relating to service of process.

In an action in tlie Municipal Court of the city of New York the defendant, by failing to appear at the trial and permitting a judgment to be taken against it by default, loses the right to have a question of fact, raised before the lower court, reviewed upon an appeal from the judgment.

On an appeal, on the ground that personal service of the summons lias not been made under section 311 of the Municipal Court *355Act, where the appellant attacks the jurisdiction of the court rendering t'he judgment and bases his attack upon alleged extrinsic facts, such fac-ts may be presented to -the appellate court in the first instance, but they must be made to appear by affidavit or other competent evidence, and the opposing party must be given an opportunity to controvert the same.

In such a case, where the appellant relie's upon the affidavits used in the court below, upon a motion made to vacate the judgment, notice of such intention should be given to his opponent.-

Page, J., dissents.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, first district.

Louis H. Porter, for appellant.

Van Iderstine, Badger & Barker (Wendell P. Barker, of counsel), for respondent.

*Per Curiam.*

Upon the return day of the summons in this 'action, the defendant 'appeared specially and traversed the return, upon the ground that no summons -and complaint had been served upon it. Upon the issue thus raised, there "was evidence given by the person upon whom the summons and complaint was served tending to show that he was not one of the persons specified in section 31, subdivision 1, of th<J Municipal Court Act, upon whom a summons may be served when the defendant is a corporation.' The trial justice, however, overruled the traverse, denied the defendant’s motion to *set*aside the service and set- the case down for trial. Upon the day set for trial the defendant did not appear, and judgment was taken against it by default. Prom that judgment this appeal comes up, the defendant claiming the right to review the order overruling the traverse and denying the motion to set aside thS service of the summons. By failing to appear upon the trial -and permitting a judgment to be taken against it by default, the defendant lost the right to have the questions of fact raised before the lower court reviewed upon an appeal to this court, as a party in default has no standing in court until such default is opened, nor *356will an appeal lie from a default judgment. Brown v. Bouse, 43 Misc. Rep. 72; Levenson v. Arnold, 49 id. 635.

The Municipal Court Act specially provides for the bringing of an appeal, where personal service of the summons has not been made; and the limit of time in which such -an appeal may he brought is twenty days after personal service of written notice of the entry of the judgment. Section 311, Municipal Court Act. Where an -appellant attacks the jurisdiction of the court rendering the judgment and bases such attack upon -alleged extrinsic facts, those facts may he presented to the appellate court in the first instance; and they must he made to appear by affidavit, or -other competent evidence; and the opposing party must be given au opportunity to controvert the same. If we should regard this as au appeal taken by virtue of the provisions of section 311 -of the Municipal Court Act, while the appellant may rely upon the testimony contained in the record as showing non-service of process, if it so desires, nevertheless, the respondent must he allowed to present testimony to the appellate court controverting the evidence -offered therein by the appellant. The practice in such oases is laid down in the case of Austen v. Columbia Lubricants Co., 85 N. Y. Supp. 362, and has •always been followed by tbis court. It was held, substantially, in Review & Record Co. v. Gilbreth, 65 Misc. Rep. 503, that, where the appellant relies upon the affidavits used in the court below, upon a motion made to vacate the judgment, notice -of such intention should he given to his opponent. This rule should he followed when -the appellant intends to rely upon the testimony taken in the court below upon such motion.

The record will he returned to the files of this court and the parties may submit affidavits as to the service at the next term of this court; the -appellant to serve -and file its -affidavits, *oi'*-a notice to the effect that it will rely upon the evidence in the return -as showing non-service, at least eight days before the first day of the next term and the respondent to file answering -affidavits -on or before the first day of the next term.

Seabury and Bijur, JJ., concur.

*357Page, J.

I dissent on the ground that the court below neither had nor acquired jurisdiction of the defendant ;• and, therefore, the judgment should he reversed and the complaint dismissed.

Judgment affirmed.