Atlantic Mortgage Co. v. Rosenfeld

Ingersoll, V. C.

The only question before the court is the question whether or not service was made. The return of the sheriff, of course, is piima facie, proof that service was made, but, in the face of the denial, both by the defendant and his wife, of such service, raises that issue plainly. The affidavit of the sheriff, When I heard it read, seemed to me to leave the question very much in doubt. He failed at that time to say that the party whom he afterwards met as Mrs. Rosenfeld, and who evidently was Mrs. Rosenfeld, because she makes affidavit of the meeting, was the woman upon whom he served. He substantiates that when put upon the stand. He fails to recognize her as the woman upon whom he made service, and I fully appreciate the difficulty of making service in matters of this sort, but, if it was served upon anyone else but Mrs. Rosenfeld, the return of the service is insufficient, there is no attempt to amend it by being shown that it was served on some other member of the family. That, of course, under the circumstances, could not now be done because the sheriff does not know. In view of the fact that the sheriff is unable now to say upon whom he made this service, whether or not he was correct in assuming or in accepting the statement upon 'whom he served that she was Mrs. Eosenfeld, in the face of the direct denial, I am compelled to grant the order. You may prepare such an order.