
    Abraham Steinam et al., App’lts, v. Moses Strauss et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Pleading—Amendment on trial.
    A complaint is never amended to conform to the proof for the purpose-of reversing a judgment, although such amendments are made in some instances for the purpose of sustaining one.
    2. Judgment—Recitals—Service.
    A recital in a judgment of the service of the summons upon a defendant is prima facie evidence of the fact that it had been served, although the affidavit of service is wanting.
    3. Same—Notice op appearance.
    An endorsement upon a notice of appearance of the time of its receipt' forms no part of the essence of the paper, and its effect is not invalidated by the fact that it bears date prior to the date of the summons.
    Appeal from judgment of the special term, dismissing the complaint upon the merits.
    
      A. Blumenstiel, for app’lts; N. Meyers, for resp’ts.
   Van Brunt, P. J.

On the 20th of November, 1889, a judgment was entered against the defendants Moses and Julius Strauss-in favor of the defendants composing the firm of Newman & Company. Execution was issued upon that judgment under which the property of the judgment debtors was levied upon. The plaintiffs being creditors of the same debtors, commenced an action, and obtained and'caused to be issued subsequently in November, 1889, attachments against the property of said Moses and Julius Strauss, which were levied upon the same property then in possession of the sheriff under the Newman judgment. Thereupon this action was brought by the plaintiffs as attaching creditors against the defendants Strauss and Newman & Company upon’ the ground that the judgment in favor of Newman & Co. was absolutely void on its face, and thabthe execution which was issued thereunder and under which the sheriff made the levy above mentioned was void, and that neither said judgment nor said execution was of any validity as against the plaintiffs’ attachment'; and prayed relief that the judgment and execution in favor of Newman & Go. be adjudged void and of no effect as against their attachment.

It appeared from the evidence that in the action brought by-Newman the summons was dated October 30, 1889, and the complaint verified on the same day, and that the cause of action was for a copartnership liability for goods sold and delivered to the defendants composing the firm'of Strauss & Son, and in the judgment-roll is a notice of appearance for both defendants directed to-the attorney for the plaintiff in that action, which notice of appearance is dated October 18, 1889, and bears an endorsement “ Received November 18, 1889.” In the judgment-roll there was no-affidavit of service upon any of the defendants, but the judgment-contained a recital that the summons and complaint were personally served on Moses Strauss, one of the defendants, on the 30th, of October, 1889. There .was evidence offered tending to show that the notice of appearance was actually served on the 18th of.' November, and that Moses Strauss, one of the defendants, was-' served with the summons on October 30, 1889, and that the defendant, Julius Strauss, was never personally served with the summons or complaint

It was claimed upon the trial that the Newman judgment was-entered before the time to answer had expired, and that it was. void upon its face, and also that upon the extraneous proof it was-invalid.

The learned court, holding that there were irregularities in the-manner in which the judgment was entered, made a decree in this, action allowing the same to be amended by annexing an affidavit of -service of the summons and complaint upon Moses Strauss, and authorizing an amendment of the docket of the judgment to the-effect that Julius Strauss was not served, and directing an amendment of the execution issued thereunder restricting the enforcement of the same to the personal property owned by the defendant Julius Strauss jointly with the defendant Moses Strauss as co-partners. From this judgment this appeal is taken.

Two questions are raised upon this appeal. The first is whether the judgment was void upon its face, and the second whether as matter of fact and from proof of extraneous circumstances it was-invalid.

The latter proposition it is not necessary to consider. No such issue was presented by the complaint and although evidence was taken in respect thereto and the learned judge seems to have passed upon the same, yet as it was not within the scope of the pleadings, and they never having been amended for the purpose of conforming the pleadings to the proof, this question was improperly considered by the court, and the result of the decision it is not necessary to review here.

If it may be said that the court should amend the pleadings to-conform the same to the proof, the proof having been taken without objection, it may be suggested in the first place that objectians appear as to some of the proof, and also that a complaint is never amended for the purpose of reversing a judgment, although such amendments are made in some instances for the purpose of sustaining a judgment.

This leaves only the other question, as to whether the judgment was void upon its face. This depends upon the point that it appears from the judgment roll that the notice of appearance was not served until November 18, 1889, and upon the fact- that there was no proof of service of the summons upon Moses Strauss •contained in the judgment roll. It was held in the case of Potter v. Merchants' Bank, 28 N. Y., 641-654, that a recital in the judgment of appearance or service of process is prima fucie evidence of the facts recited. Such rule was also recognized in Bosworth v. Vandewalker, 53 N. Y., 597, and in many cases subsequently.

The recital therefore in the judgment of the service of the summons upon Moses Strauss was prima facie evidence of the fact that it had been served,, although the affidavit of service was wanting.

The next point is in regard to the notice of appearance. The endorsement upon the notice of appearance forms no-part of the essence of the paper. It was dated on the 18th of October. The suit had been commenced a sufficient length of time in order to justify the entry of the judgment if process had been served ; ¡and although the notice of appearance bears date prior to the time of the date of the summons, that would not invalidate its effect, and it is to be presumed in the absence of evidence to the ■contrary that it was served upon the day it bears date, as every presumption is in favor of the regularity of a judgment. There is nothing therefore upon the face of the judgment roll which indicates a want of jurisdiction in the court in the entry of the same.

It may be questionable as to whether the court was justified in decreeing an amendment of the judgment roll in this action, but as no point is raised in that regard upon this appeal it is not discussed.

The judgment should therefore be affirmed, with costs.

XiAWRENCE, J., concurs.  