
    The Empire Hardware Co., Respondent, v. William M. Young, Appellant.
    (Supreme Court, Appellate Term,
    April, 1899.)
    Appellate Term — Power .to open default in Municipal Court — Payment of execution under protest.
    The Appellate Term may, in the first instance and on affidavits, open a judgment taken in a Municipal Court of the city of New York by default, where the summons had never been served ón the defendant, and the fact that he, under protest, has paid an execution issued on the judgment does not bar his right to try the error in fact by an appeal.
    Appeal from a judgment, in favor of the "plaintiff, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, for the first district.
    Samuel Seabury, for appellant.
    Louis Z. Kinstler, for respondent.
   Leventritt, J.

The plaintiff recovered judgment by default •on the nonappearance of the defendant; execution was issued and: the amount, claimed thereunder was paid under protest.

The defendant appeals alleging error in fact in the proceedings, not affecting the merits of the action and not within the knowledge •of the justice. Code Civ. Pro., § 3057. The error assigned is the nonservice of the summons. Under the sanctioned practice the matter is presented for our determination in the first instance on" •opposing affidavits. While the application" to open the default-might originally have "been addressed to the court below (Laws of 1882, chap. 410, § 1367; as amended by Laws of 1896, chap*. 748), that course of procedure is merely concurrent with the one adopted By the appellant. Szerlip v. Baier, 21 Misc. Rep. 331; Burkhard v. Smith, 19 id. 31.

Her did the payment of the judgment bar the appeal. The payment not having been by way of compromise or coupled with an .agreement not to take, or pursue, an appeal, the temporary compulsory submission to the mandate of the court, cannot affect the right to try error on appeal. Hayes v. Nourse, 107 N. Y. 577; Clowes v. Dickenson, 8 Cow. 328; Perry v. Woodbury, 44 N. Y. St. Repr. 287; Monnet v. Merz, 43 id. 59.

We are, consequently, required to pass upon the error in fact. A careful examination of the affidavits submitted satisfies us that the summons was not served on the defendant, and that at the time of the alleged service as well as prior and subsequent thereto he was not in the jurisdiction. This conclusion convincingly established by the five affidavits presented in behalf of the appellant, is not weakened by the' inconclusive and unsupported affidavit of service. ,

The judgment should be reversed.

Ebbed max, P. J., and MaoLear, J., concur,

Judgment reversed, with costs to appellant.  