Halpern v. Sherman , 107 N.Y.S. 20 ( 1907 )

PER CURIAM.

The defendant appeals upon the ground that no service of the summons was ever made upon him, and submits affidavits in support of his contention. The respondent also submits the affidavit of the person who served the summons, who testifies positively to the time and place of the service and to his acquaintance with the defendant served. This witness is corroborated by a person who testifies that he was with the person making the service, and heard him address the defendant by his name, and saw him hand him the copy of the summons in this action. The affidavits submitted uphold the respondent’s contention. The appeal must be dismissed, leaving the appellant to apply to the court below to open his default.

Appeal dismissed, with $10 costs.