FERGUSON v. CRAWFORD ET AL., 86 N.Y. 609 (1881)

ORSON J. FERGUSON, Appellant, v. STEPHEN H. CRAWFORD et al., Respondents.

Court of Appeals of the State of New York.Submitted October 13, 1881
Decided November 22, 1881

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Wm. F. Purdy for appellant.

Wilson Brown, Jr., for respondents.

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RAPALLO, J.

When this case was before us on the former appeal, we held that evidence was admissible to prove that the recital in the judgment in the case of McFarquhar against Ferguson — that Ferguson appeared in that action by John W. Mills as his attorney — was untrue; that Mr. Mills did not in fact appear for him, and that the notice of appearance contained in the judgment-roll and purporting to be signed by Mills was a forgery. (70 N.Y. 253.)

On the second trial, which is now under review, the evidence offered by the plaintiff for the purpose of showing that he did not appear by attorney in the McFarquhar Case was admitted, but the court has found the fact to be that Ferguson did duly and regularly appear in that action by John W. Mills as his attorney, and that the notice of such appearance was signed by the authority of said John W. Mills.

The only point which is or can be raised on this appeal is that the above finding of fact is unsupported by any evidence or is against the evidence.

The judgment in the McFarquhar Case was regular on its face, and every intendment should be in favor of its validity; and, although we have held that the defendant therein was at liberty to show, if he could, that the court never acquired jurisdiction of his person, yet the burden of establishing that fact was upon him, and it should be established in the most satisfactory manner to deprive the judgment of its effect.

The evidence showed that the notice of appearance was signed, in 1857, by Elias P. Purdy, who was at the time a clerk in the office of Mr. Mills. Mr. Purdy, on his examination as a witness, more than twenty years afterward, did not recollect the circumstances under which he signed it, or that Mr. Mills directly authorized him to sign it, though he testified that he must have received such information as satisfied him that he was authorized to sign it. Mr. Mills was equally devoid of recollection as to the matter, and did not deny that he was employed by Mr. Ferguson to appear for him in the action, nor does he recollect as to whether or not his clerk signed papers for him. Mr. Ferguson was not examined as a witness on the

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second trial, but his testimony on the first trial was read, and he did not therein testify that he had not been served with the summons in the McFarquhar suit, or that he had no notice of the suit, or that he had not employed Mr. Mills to appear for him therein. He says nothing on the subject of that suit.

The evidence was, we think, insufficient to rebut the presumption in favor of the regularity of the judgment in th McFarquhar suit, and no error was committed by the trial court in sustaining its validity.

The judgment should be affirmed, with costs.

All concur, except MILLER, J., not voting.

Judgment affirmed.

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