Opinion
January, 1895.
George C. Coffin, for respondent.
John Naumer, for appellant.
This appeal is founded upon an alleged "error of fact, not affecting the merits and not within the knowledge of the justice below" (Code Civ. Proc. § 3057), such error being assigned to the unauthorized entry of an appearance for the defendant, appellant, it not appearing from the record that he was personally served with the summons, nor is claim made that he was.
While it was held in Jourdon v. Healey, 46 N.Y. St. Repr. 198, that section 3057 was not applicable to appeals from the District Courts, the statement there made was obviously due to an oversight, and, moreover, the point was not essential to the determination of that case. By section 3213 of the Code and section 1438 of the Consolidation Act (Laws 1882, chap. 410), articles 1 and 2 of title 8 of chapter 19 of the Code are made applicable to the District Courts, and section 3057 is included in article 1 of such title and chapter.
For the respondent it is claimed that this court has not jurisdiction to entertain the appeal, it being conceded that the notice of appeal was not served within twenty days after entry of judgment. Code, § 3046, made applicable by § 3213, Code Civ. Proc., and § 1438, Consol. Act. The last-cited section reads as follows: "An appeal must be taken within twenty days after the entry of judgment in the justice's docket, except that where a defendant appeals from a judgment rendered in an action wherein he did not appear and the summons was not personally served upon him, the appeal may be taken within twenty days after personal service upon him on the part of the plaintiff of written notice of the entry of judgment, but not after the expiration of five years from the entry of the judgment," etc.
In answer, the appellant contends that he had not appeared in the action, and that, therefore, his appeal was properly taken within five years after entry of judgment, no service of notice of its entry having been made.
From the return it appears, and is not denied, that the appellant was physically present in court upon the trial of this cause; that he was examined as a witness "for the defendants," there being but one defendant other than himself, and was cognizant of the matters in suit.
How, then, is the judgment to be assailed for "error of fact not within the knowledge of the justice?"
Who, better than the justice presiding, should be cognizant of the fact whether or not this defendant appeared and litigated the question at issue, as from the record it would appear that he did?
The return might, perhaps, have been open to amendment, but, as it exists, it is not to be attacked by affidavits under section 3057, and the judgment standing as establishing the fact of the appellant's appearance, the appeal was not seasonably instituted (Code, § 3046), and must be dismissed, with costs.
BOOKSTAVER, J., concurs.
Appeal dismissed, with costs.