TENEMENT HOUSE DEPARTMENT OF CITY OF NEW YORK v. KURZROK.
(Supreme Court, Appellate Term.
November 12, 1909.)
Judgment (§ 138*)—Judgment by Default—Opening.
Where a default judgment had been secured without personal service of the summons upon .defendant, his motion, after due notice to plaintiff, that the judgment be vacated, and that he be allowed to come in and defend, should have been granted.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 251, 254; Dec. Dig. § 138.*]
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by the Tenement House Department of the City of New ’ York against Raphael Kurzrok. From an order denying a motion to set aside a default' judgment, defendant appeals.
Reversed, judgment vacated, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, °JJ.
Marcuson Bros., for appellant.
PER CURIAM.
A judgment by default was taken against the defendant, who thereupon moved to open the default, vacate the judgment, and that he be allowed to come in and defend the action. The ground of the motion was that no personal service of the summons had ever been made upon him.
*179Upon the hearing, it was not substantially denied that the defendant was not served with process. As he, however, voluntarily submitted himself to the jurisdiction of the court, and asked, upon due notice to the plaintiff, that he be allowed his day in court, the motion should have been granted. Friedberger v. Stulpnagel, 59 Misc. Rep. 503, 113 N. Y. Supp. 89.
Order reversed, judgment vacated, and a new trial ordered, with costs to appellant to.abide the event.