
    William I. Cohn and Joshua Cohn, Copartners, Trading as W. I. & J. Cohn, Respondents, v. John G. Wilson, Trading as Tappe, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Process — service — default.
    A defendant on appeal from a judgment taken on his default’in a Municipal Court action may present affidavits to show that he was never served with the summons.
    Whitaker, J., dissents.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff on defendant’s default.
    David Ross, for appellant.
    Samuel S. Breslin, for respondents.
   Lehman, J.

The defendant on an appeal from a default judgment presents affidavits to show that he was never served with the summons in the action. The Municipal Court Act undoubtedly authorizes this practice and upon such an appeal we can consider only the question whether by service of process the Municipal Court ever obtained jurisdiction of the defendant’s person. If it never obtained such jurisdiction, the judgment is void even though it appears that the person actually served was closely related to the defendant and even though we may suspect that the defendant knew of the action and is appealing only to escape a judgment for money actually due. In this case the affidavits presented by the plaintiff show that he does not personally know the defendant but relied for his identification upon some unidentified employees of defendant. On the other hand, not only does the defendant deny the service, ‘but his brother and two other persons swear that the summons was served on the brother in defendant’s absence. Under the circumstances I cannot see how we can reasonably hold that the defendant was ever served.

Judgment must therefore be reversed with costs and the complaint dismissed.

Delany, J., concurs.

Whitaker, J.,

dissents, upon the ground that appellant should have applied to the court in which the judgment was entered in the first instance for relief, and that an appeal to this court without having made such an application is not the proper practice and is without statutory sanction.

Judgment reversed with costs.  