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Appellate Term, First Department, January, 1918. [Vol. 102.

defendant is convincing evidence of the practical construction of the agreement by the parties themselves. If there is any doubt as to the meaning of the contract entered into between the subscribers and the defendant, the parties themselves have resolved it in favor of the position taken by the defendant.

Assuming, without deciding, that the bond is a negotiable instrument, it was past due upon the plaintiff's own theory when acquired by him, and consequently all defenses available against the original holder may be interposed against the plaintiff. The complaint is dismissed on the merits.

Judgment accordingly.

LLOYD HUGHES, Respondent, v. PEERLESS UNIT VENTILATION COMPANY, INC., Appellant.

(Supreme Court, Appellate Term, First Department, January, 1918.)

Pleading-in Municipal Court of city of New York-deposition — Supreme Court — actions - what may be considered as a complaint Municipal Court Code, §§ 19, 20, 27(4), 78.

Under section 78 of the Municipal Court Code the indorsement upon a summons issued by the Municipal Court of the city of New York showing the nature and substance of the plaintiff's cause of action may be considered as the complaint which under sections 19 and 20 of said Code the defendant is required to answer.

In such case the court, under section 27 (4) of said Code, as amended in 1916, which provides that the deposition of an adverse party may be taken in the same manner as in the Supreme Court, may grant an order for the examination of defendant before trial in order that plaintiff may prepare an amended complaint.

APPEAL by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan,

Misc.] Appellate Term, First Department, January, 1918.

ninth district, denying a motion to vacate an order for the examination of the defendant before trial.

Pressinger & Newcombe, (Elmer E. Wigg, of counsel), for appellant.

Roger Hinds, for respondent.

PHILIBIN, J. The order for the examination of the defendant before trial was obtained for the purpose of framing a complaint.

The affidavit upon which the order for the examination is based states that the summons has been issued and will be served with the order for which application is made. The summons is part of the record and has an indorsement thereon showing the nature and substance of the plaintiff's cause of action.

In the Municipal Court an action cannot be commenced by the service of a summons alone. Steffens v. Martin, 100 Misc. Rep. 263. There must be submitted to the court a written complaint, accompanying the summons, or an indorsement on the summons stating the nature and substance of plaintiff's cause of action. This indorsement may be considered as a normal complaint within the provisions of section 78 of the Municipal Court Code; and the defendant is required to answer such indorsement as "the complaint" (Mun. Ct. Code, §§ 19, 20) in the action. The complaint having thus been made and served in the instant case, there was, strictly speaking, no ground upon which the court could grant an order to prepare one. However, if we consider substance rather than form, it appears that the plaintiff is in reality asking for an examination to prepare an amended complaint. Such an application was granted by this court in the case of Jerrells v. Perkins, 25 App. Div. 348, and under the

Appellate Term, First Department, January, 1918. [Vol. 102.

amendment of 1916 (Mun. Ct. Code, § 27, subd. 4), providing that in the Municipal Court the deposition of an adverse party may be taken in the same manner as in the Supreme Court, it must be held that the court below had power to make the order appealed from and that, therefore, the appeal must be dismissed. Id. § 154.

While, therefore, we cannot at this time pass upon the question as to the scope of the order, we think it is too broad and should have been limited so as to provide for an inquiry only as to the terms of any contract between plaintiff's assignor and the defendant and as to the assignor's performance. If the attention of the court below is called to this point, there is no reason to believe it will not take appropriate action.

GUY and BIJUR, JJ., concur.

Appeal dismissed, without costs.

FRANK H. HENRY, Respondent, v. HERMAN VAN ZONNEVELD and JAN PHILIPPO, Doing Business under the Firm Name and Style of VAN ZONNEVELD BROTHERS & PHILIPPO, Appellants.

(Supreme Court, Appellate Term, First Department, January, 1918.)

Default motion to open-Municipal Court of city of New Yorkjurisdiction nonresidents - judgments - motions and orders.

Where, in a Municipal Court action to recover a balance due for goods sold and delivered, no personal service of the summons, attachment or any of the papers in the action was ever made upon the defendants, who were residents of Holland, a second motion made to open their default in appearing and answering was made after the entry of judgment in the

Misc.] Appellate Term, First Department, January, 1918.

belief that all the papers on a similar motion made before the entry of judgment had been lost, and the moving papers upon the second motion contain the undisputed statement that upon the day set for an inquest defendants' attorney appeared and his request for leave to interpose an answer was refused, the court has jurisdiction to hear the motion, and an order entered upon a denial of the motion to vacate the judgment will be reversed.

APPEAL by the defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, denying a motion to vacate a judgment.

Adolph M. Schwarz and Louis F. Perl (Louis A. Jaffer, of counsel), for appellants.

Seibert, Paddock & Cochran (James Cochran, of counsel), for respondent.

WEEKS, J.. The defendants herein are non-residents of this state and reside in Holland. They have an attorney-in-fact residing in this city, and also employ an attorney-at-law.

On June 2, 1917, the plaintiff applied for and obtained a writ of attachment against the property of the defendants, based upon a complaint for a balance due for goods sold and delivered. The marshal levied upon funds belonging to the defendants then in the hands of a firm of bankers in this city. No personal service of the summons, attachment, or any of the papers in the action, was ever made upon the defendants, or upon the attorney-in-fact. The attorney-in-fact was informed by the bankers of the levy and they stated that they had given the marshal the address of the attorney in this city, and that the marshal or process server said he would take a copy of the papers to his house. Not receiving any papers

Appellate Term, First Department, January, 1918. [Vol. 102.

the attorney-in-fact consulted with defendants' counsel and on June 23, 1917, an order to show cause was procured, returnable June 26, 1917. The relief asked for was why an order should not be made "to open the default of the defendants in appearing and pleading and to vacate and set aside any judgment entered in the action and permitting the defendants to appear and file their answer."

On July 7, 1917, the defendants obtained another order to show cause returnable July 10, 1917, asking for the same relief and setting up in the moving papers that the papers in the former motion had been lost or mislaid in the office of the clerk of the Municipal Court and could not be located.

Both motions contained a verified answer setting up a denial and also a counterclaim and an affidavit made by the attorney-in-fact to the effect that he was familiar with all the transactions between the parties and that the defendants had a meritorious defense. Both motions were denied. The order on the first motion is dated June 26, 1917, and the order on the second motion is dated July 24, 1917. It is in proof that when the second motion was made and at the time it was heard on July 10, 1917, the papers in the first motion had not come to light. The defendants appeal from the order made on the last motion and the point is made by the respondent that the power of the court was exhausted, and that no power existed to make the second order and that the appeal should have been taken from the first order. Without passing upon the question as to whether or not the cases cited by the respondent as upholding this contention are now authorities under the new Municipal Court Code, they having been decided prior to its enactment, we think the making of the last motion was proper and the appeal therefrom well taken.

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