
    The Iron Clad Manufacturing Co., Respondent, v. Benjamin E. Smith & Sons, Appellants.
    (Supreme Court, Appellate Term,
    June, 1899.)
    1. Municipal Court of the city of Mew York — Appeal where the summons was never served — Code Civ. Tro., § 3057.
    An application to reverse a default judgment, based upon the ground . that the defendants were never in fact served with the summons, comes within section 3057 of the Code of Civil Procedure relative to appeals founded upon an error in fact in the proceedings which does not affect the merits.
    3. Same — Return of service only prima facie proof of jurisdiction.
    A judgment of the' Municipal Court of the City of New York will be reversed upon appeal where it appears that the summons was never served, a return of personal service having the effect of making out only a prima facie ease of jurisdiction.
    Appeal by the defendants from a judgment rendered in the Municipal Court, second district, borough of Manhattan, against the defendants and in favor of plaintiff by default.
    Samuel S. Watters, for appellants.
    Charles D. Cleveland, for respondent.
   Freedman, P. J.

This appeal is taken by the defendants from a judgment entered against them by default. The return shows that a summons was issued on the 23d day of January, 1898, returnable on the 3d day of February, 1898, which summons, together with the verified complaint, appears by the affidavit of Benjamin B. Barnett, a person duly deputized to make the service, to have been served upon the treasurer of the defendant corporation on January 24, 1898. Upon the return day of the summons the defendants did not appear and judgment was rendered against, them.

An appeal was thereupon taken, and the defendants submit affidavits containing statements upon which they ask for a reversal of the judgment upon the ground that the defendants were not served with the summons in this action. This appeal comes within the provisions of section 3057 of the Code of Civil Procedure, made applicable to appeals from Municipal Courts by section 1367 of the Consolidation Act, authorizing appeals from judgments rendered upon default where the appeal is taken for errors of fact. Burkhard v. Smith, 19 Misc. Rep. 31; Empire Hardware Co. v. Young, 27 id. 226.

The return of personal service upon the defendants made out a prima facie case of jurisdiction over the person of the defendants, yet, if the summons was not. in fact served, no jurisdiction could have been in fact acquired. Fitch v. Devlin, 15 Barb. 47.

The respondent does not claim that service of the summons herein returned was made, it appearing that there was handed to and left with the treasurer aforesaid, a summons returnable at a time several days prior to the date of the issue of the summons returned.

No service as required by sections 2878-2879 of the Code of Civil Procedure was, therefore, made upon defendants and the court acquired no jurisdiction, in fact, of the persons of the defendants.

Judgment must, therefore, be reversed.

MacLean and Leventritt, JJ., concur.

Judgment reversed, with costs to appellant.  