Flanson Realty Corp. v. Workers' Unity House, Inc. , 231 N.Y.S. 742 ( 1928 )

Proskauer, J.

This is an appeal from an order denying a motion to vacate a judgment on the ground that no proper service had been _ effected on the defendant. The appellant contends that the person served was not an officer of the corporation and that the affidavit of service upon “ John Doe,” as president of the defendant corporation, was false in that the real president of the corporation was one Rabinow, who concededly was never served. The respondent, on the other hand, challenges the right of Rabinow to function as president of the defendant corporation and indeed to take this appeal at all. The facts are sharply contested and the record is replete with charge and counter-charge of fraud and conspiracy to secure control of what were in effect the assets of a labor union. We find it impossible to make a satisfactory final determination of the facts upon the affidavits contained in this record and we think the ends of justice will be best served by reversing this order, without costs, remitting the motion to Special Term, with a direction to appoint an official referee to take testimony upon the disputed questions of fact.

Dowling, P. J., Merrell, Pinch and O’Malley, JJ., concur.

Order reversed, without costs, and motion remitted to the Special Term with the direction that an official referee be appointed to take testimony and report the same upon the disputed questions of fact.