
    Harris Silverman, Respondent, v. Abraham S. Davis, Impleaded, etc., Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    An attachment against “ John Doe ” will not be vacated on the motion of the true defendant — Effect of failure of return to excuse due service of summons.
    An attachment against “ John Doe ” is not issued against a fictitious person and should not be vacated on the motion of the real party against whom it is issued.
    Where, however, there has been no personal service of the summons and the return fails to make proper excuse therefor, the defect is fatal to jurisdiction, although the return is amendable.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the cit-y of Hew York, thirteenth district, borough of Manhattan]
    Abraham Oberstein, for appellant.
    M. D. Silverstein, for respondent.
   Bischoff, J.

The appellant mistakenly asserts that the attachment was issued in the name of a fictitious person; the warrant was directed solely against the appellant,, not against the defendant John Doe, and upon the merits of the application, the justice properly refused to vacate the attachment.

There was, however, no personal service of the summons and the jurisdiction to proceed, upon the appellant’s default of appearance in the action, depended upon the due execution of the warrant (Mun. Ct. Act, §§ 88, 91), evidenced by the marshal’s return. The statute prescribes the matters which the return must state (§ 88, supra), among others the reason for a failure to make personal service upon the defendant, and, as to this requirement the return in the present case was unquestionably defective. The omission was not supplied by referring to the warrant or some other paper, as in Bell v. Moran, 25 App. Div. 461, and the defect was fatal to the jurisdiction of the court where there was a default of appearance. Willard v. Sperry, 16 Johns. 121.

Judgment reversed, hut since the return is amendable the proceedings are remitted to the court below, with costs of this appeal to the appellant.-

Freedman, P. J., and Fitzgerald, J., concur.

Judgment reversed, and proceedings remitted to court below, with costs of this appeal to appellant.  