Freeman v. Demorest

GILDERSLEEVE, P. J.

On October 24, 1907, a judgment was entered against the defendant in this action in favor of the plaintiff upon proof of the service of the summons upon the defendant; he not appearing. On December 19, 1907, the defendant appealed from such judgment under the provisions of section 311 of the Municipal Court act (Laws, 1902, p. 1578, c. 580). Eight days prior to the hearing of this appeal, in accordance with the practice (Austen v. Columbia Lubricants Co. [Sup.] 85 N. Y. Supp. 362; Lazarus v. Boynton [Sup.] 86 N. Y. Supp. 104) the defendant served upon the plaintiff’s attorney affidavits showing that no service of the summons was ever made upon him, and upon the hearing of the appeal the respondent filed answering affidavits. From an examination of the testimony thus given, upon the issue of fact thus raised, we are of the opinion that the defendant was not served in the action, and that the court below did not have jurisdiction over the person of the defendant at the time the judgment was rendered. The judgment must therefore be reversed, with costs to the appellant.

Judgment reversed, with costs, and complaint dismissed.

SEABURY, J., concurs.