
    Leonard Greenhall et al., Respondents, v. Theresa Unger Appellant.
    (City Court of New York, General Term,
    May, 1897.)
    Supplementary proceedings — Dismissal for want of service of process.
    Proceedings supplementary to execution will not be dismissed upon affidavits tending to show that the defendant was not personally served with summons in the action in which the judgment forming the basis of the proceedings was obtained, where the judgment recited that the summons was personally served and no motion has been made by the defendant to open the default or vacate the'judgment.
    Appeal from order denying motion to dismiss proceedings, supplementary to execution.
    R. M. Sherman, for appellant.
    Greenhall & Levy, for respondents.
   Schuchman, J.

This is. an appeal from an order denying a motion to dismiss proceedings supplementary to execution upon the ground that the summons in the action in which judgment had been obtained, and on which . said judgment the proceedings are founded, was not personally served on the defendant.

The judgment was obtained on default of the defendant in .pleading.

The affidavit of service contained in the judgment-roll proves a personal service of the summons on the defendant.

The judgment itself as entered on October 7, 1896, recites the following facts: “The summons and complaint in this action having been personally served on the defendant,” etc.

It does not appear that the defendant’s default was ever opened or excused nor the judgment vacated or set aside or interfered with in any manner; and it, therefore, stands as a.valid record and adjudication.

" The order in the supplementary proceedings recites all the necessary jurisdictional facts and is fully supported by the proofs contained in the affidavit on which it was granted.

The defendant, Theresa linger, in her affidavit denies that- she was personally served with, the summons, and testifies that she never saw it, until it was shown her by her husband.

Her husband, Robert Unger, in his affidavit states that the summons and complaint were not personally served on his wife, but was left with him in her absence by a clerk,” etc.

Upon this conflict of evidence in regard tb the service of the summons upon the defendant and considering that the defendant never moved to open the default or vacate the judgment, we think the order should be affirmed, with costs.

Conlan, J., concurs.

Order affirmed, with costs.  