Burkhard v. Smith
Appellate Terms of the Supreme Court of New York
Appeal from judgment rendered by the justice of the Second Judicial District Court upon default of appearance by the defendant, who assigns error of fact in that the summons had not been served, upon him.
1Opinion of the CourtBischoff, J.
The' right of appeal for error of fact as to matters not .brought before the justice at the trial, such as the failure of service of the summons where the defendant had not appeared, was accorded to a defendant in an action brought in one of the District Courts by section 1438 of the Consolidation Act (chapter 410, La^ws of 1882) (Jennings v. Miller, 10 Misc. Rep. 762), the appeal being addressed to the Court of Common Pleas, prior to January 1, 189-6.
By section 3213 of the Code of Civil Procedure, as amended to take effect January 1, 1896, this right of appeal was continued, the hearing to…
2Cases cited3 opinions
- Waring v. McKinleyNew York Supreme Court · 1862
- Jennings v. MillerNew York Court of Common Pleas · 1895
- Zimmermann v. BlochNew York Court of Common Pleas · 1895
3Cited by7 opinions
- Szerlip v. BaierAppellate Terms of the Supreme Court of New York · 1897
- Allison v. T. A. Snider Preserve Co.Appellate Terms of the Supreme Court of New York · 1897
- Edelson v. EpsteinAppellate Terms of the Supreme Court of New York · 1899
- Iron Clad Manufacturing Co. v. Benjamin E. Smith & SonsAppellate Terms of the Supreme Court of New York · 1899
- Grossman Bros. v. Atlas Construction Co.Appellate Terms of the Supreme Court of New York · 1909
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