Hall v. Ontario Biscuit Co. , 272 A.D.2d 1095 ( 1947 )

Appeal from an order of the Albany Special Term of Supreme Court dismissing the action. This action was commenced by the service of a summons only on the defendant. No pleadings have been served. Thereafter, and on the affidavit of one of its attorneys, the defendant appeared specially and moved to dismiss the action on the ground that the defendant named in the summons is not the correct defendant; that the correct defendant’s name is "The United Biscuit Co. of America”. Plaintiff filed an affidavit to the effect that the defendant named is the correct defendant. Whether the defendant named in the action is the correct defendant or not cannot be determined on a motion, it must await trial of the issues. Order reversed on the law and facts, with $10 costs and disbursements. Motion denied, with $10 costs. Hill, P. J., Heffernan, Foster and Deyo, JJ., concur; Russell, J., taking no part.