
    Automatic Phonograph Maintenance Service, Respondent, v. Murray Werger, Appellant.
    Supreme Court, Appellate Term, Second Department,
    December 8, 1958.
    
      
      Mischa Lasoff for appellant.
    
      Samuel K. Field and Jacob Spats for respondent.
   Per Curiam.

The motion to vacate the judgment for non-service of process is made as a matter of right, and if no process had been served the judgment is absolutely void and must be vacated. (N. Y. City Mun. Ct. Code, § 129, subd. 1; also, see, Potenza v. Canto, 18 N. Y. S. 2d 849, and cases there cited.) The burden is upon the defendant to establish that he was not served with process.

The order on reargument should be reversed on the law, with $10 costs to defendant, original order adhered to, and matter remitted to the Municipal Court for disposition after determining on oral proof whether defendant was served with process.

Concur — Pette, Di Giovanna and Brown, JJ.

Order reversed, etc.  