
    The Long Branch Pier Co., Respondent, v. Hannah L. Crossley, First Name “Hannah” Fictitious, Etc., Appellant.
    (Supreme Court, Appellate Term,
    March, 1903.)
    Municipal Court of the city of Hew York—Order opening default not appealable — Default opened on terms — Impeaching marshal’s return of personal service of summons and complaint.
    In an action begun in the Municipal Court of the city of New York - after Sept. 1, 1902, when the Municipal Court Act (L. 1902, ch. 580) went into effect, the defendant may appeal from a judgment taken against her upon her default, but is prohibited, by section 257 of said statute from an appeal from an order opening her default.
    The order may, under section 253 of said statute, lawfully provide that the judgment stand as security.
    A marshal’s return, showing personal service of the summons and verified complaint upon the defendant, cannot be controverted by her affidavit that she was not served, and her affidavit forms no part of the record.
    Appeals from the Municipal Court of the city of New York, second district, borough of Manhattan.
    Randolph M. Newman, for appellant.
    L. & A. U. Zinke, for respondent.
   Per Curiam.

The defendant has brought two appeals. The first is from a judgment, entered against her by default, on Sep- • tember 30, 1902, and the second, is from an order, made upon her own application, relieving her from her default rtpon certain ■terms.

The action was begun by the issuance of a summons and verified complaint on September 23, 1902, returnable on September 30, 1902. Upon the return day the defendant failed to appear, and plaintiff took a judgment against her by default. On October 15, 1902, an order to show cause was made upon defendant’s application why the judgment, entered on default, should not be vacated, set aside and canceled of record. .This order was based upon an affidavit, made by the defendant, setting forth the allegation that she had never been served with the summons in this action. The said order was returnable on October 16, 1902, when the motion was argued. On the following day, i. e., October 1Y, 1902, the justice refused to set aside the judgment, but did open defendant’s default, allowing the judgment to stand as security. The cause was set down for trial on October 21, 1902, but was subsequently set down for trial on November 10, 1902.

The respondent moves to dismiss both appeals.

As this action was begun subsequent to September 1, 1902, the provisions of the Municipal Court Act (Laws of 1902, chap. 580) apply. The summons and a verified complaint herein were personally served upon the defendant, according to the return of the marshal, upon September 23, 1902. The return herein is silent as to what proof was offered by the respective parties, upon the return of the order to show cause, regarding the service or non-service upon the defendant of the summons and complaint in this action. It contains only the affidavit of the defendant, alleging that such service was not made, and the certificate of the marshal that such service was made. To this feature of the case, however, we need give no consideration, for the reason that the default was, ás we have seen, opened, and the judgment vacated arid set aside for all purposes, except that of security to the plaintiff. From the order opening the default herein no appeal lies. Laws of 1902, chap. 580, § 25Y. An appeal can only be taken from the judgment. See Beebe v. Nassau Show Case Co., 41 App. Div. 456.

As to that portion of the order which permitted the judgment to stand as security, section 253 of the statute, above cited, permits the court tó open a default upon “ such terms and conditions as the court may deem proper.” The court, in the case at bar, had clearly the right to impose the condition, it did, and we see no reason for disturbing the order in that respect.

The affidavits submitted by the appellant cannot controvert the return, and forms no part of the record, and cannot be considered. See Barber v. Stettheimer, 13 Hun, 198.

Appeals dismissed, with ten dollars costs and disbursements.

Present: Freedman, P., J., Gildebsleeve, and Giegerich, JJ.

Appeals dismissed, with ten dollars costs and disbursements.  