Legal Opinion

Szerlip v. Baier

Appellate Terms of the Supreme Court of New York

Decided September 15, 1897PublishedCited by 5 opinions

Appeal by the plaintiff from, an order of the justice of the Fifth District Court, vacating a judgment which had been entered by default in plaintiff’s favor, and awarding judgment against her, and in favor of defendant,. Franz Baier, for $30 fees of the referee before whom the witnesses were examined, and their deposition taken for use upon the defendants’ motion to vacate; the judgment.

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Appeal by the plaintiff from, an order of the justice of the Fifth District Court, vacating a judgment which had been entered by default in plaintiff’s favor, and awarding judgment against her, and in favor of defendant,. Franz Baier, for $30 fees of the referee before whom the witnesses were examined, and their deposition taken for use upon the defendants’ motion to vacate; the judgment. The motion to vacate was upon the ground that the summons had never been served upon the moving party..

1Opinion of the CourtDaly, P. J.

A judgment was rendered in this action against the defendant in the District Court for want of appearance and answer, on proof of personal service of the summons. • He. moved, before the justice, to set aside the judgment upon the ground -that the summons had never been served, and the motion was ■granted. From the order granting the motion, this appeal is taken. The respondent questions the jurisdiction of the court to entertain -the appeal, upon the ground that the statute, under which the justice assumed to act, confers no power to open a judgment by default, except in cases where…

2Cases cited2 opinions

  1. Fitch v. DevlinNew York Supreme Court · 1853
  2. Burkhard v. SmithAppellate Terms of the Supreme Court of New York · 1896

3Cited by5 opinions

  1. Empire Hardware Co. v. YoungAppellate Terms of the Supreme Court of New York · 1899
  2. Johnson v. ManningAppellate Division of the Supreme Court of the State of New York · 1902
  3. Spiropulos v. MagnioniAppellate Terms of the Supreme Court of New York · 1905
  4. Ludwin v. SianoAppellate Terms of the Supreme Court of New York · 1901
  5. Ludwin v. SianoAppellate Terms of the Supreme Court of New York · 1901

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