Appellants submit affidavits that they were never served with summonses. Respondent submits counter affidavits to the effect that the summons was served upon one of the defendants, James Tassi. Appellants base their contention that an appeal is proper upon the provisions of section 311 of the Municipal Court Act, which provides as follows:
*577“An appeal must be taken within twenty days after the entry of the judgment, order or final order in the 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 the judgment. An appeal is taken by serving upon the clerk of the court or his successor in office in the district in which the judgment, order or final order was rendered, and upon the respondent, a written notice of appeal, subscribed either by the appellant or by his attorney in the appellate court, and paying at the same time the costs and disbursements of the action to such clerk who shall hold the same to abide the event of such appeal and the further order of the court in the district from which the appeal was taken. The city of New York, or any board, department or official thereof, appearing by the corporation counsel, shall not be obliged to pay such costs and disbursements until the final determination of such appeal. The service and filing of a notice of appeal by the city of New York with the clerk of the court as aforesaid'shall operate as a stay.”
This section has no application. It does not provide what is appealable but only limits the time in which an appeal may be taken.
I am' aware it has been held by this court that an appeal in a case like the present lies (Dixon v. Carrucci, 49 Misc. Rep. 222; Waldman v. Mann, 101 N. Y. Supp. 757, 758; Austen v. Columbia Co., 85 id. 362; Lazarus v. Boynton, 86 id. 104; Frieberger v. Stulpnagel, 59 Misc. Rep. 498); but it is entirely against my best judgment to allow such appeals. This court is not a court of original jurisdiction and ought not to take the responsibility in *578the first instance of passing upon disputed facts. Every court has control of its own- judgments and the Municipal Court of the city of New York should first pass upon the question as a question of fact upon an application to it for leave to come in and defend or to set aside the judgment. To allow this appeal would make it easy for persons against whom judgments are taken even upon proper service to simply make an affidavit of no service and appeal to this court. This court should not be called upon to pass upon the fact of service in the first instance. In the first place it deprives the respondent of one of his opportunities to test the matter and in the next place this court would not be inclined to sustain the judgment if defendant makes affidavit of no service.
This practice, in my judgment, will if continued result in serious consequences. I think therefore that the appeal should he dismissed and the appellants directed to make their application to set aside the judgment to the court in which it was rendered.'
Judgment reversed, with costs.