Lazar v. Cecelia Co.

LEIBELL, District Judge.

I have read and studied the affidavits and exhibits submitted by the parties on this motion made by defendant to quash the service of the process herein. The papers before me definitely raise issues of fact, as to the manner and extent to which the defendant corporation was doing business in the State of New York at the time process was served in this action. There is a further issue as to whether the summons was served on a proper representative of the defendant under the new Federal Rules of Civil Procedure, Rule 4 (d) (3) and (7), 28 U.S.C.A. following section 723c, assuming defendant was doing business here.

These issues arise under subdivision “2” of the notice of motion, reading as follows: “2. To dismiss the action or in lieu thereof to quash the return of service of summons on the ground (a) that the defendant is a corporation organized under the laws of Illinois and was not and is not subject to service of process within the Southern District of New York, and (b) that the defendant has not been properly served with process in this action,

It is difficult to determine these issues from the affidavits submitted, which contain conflicting statements. I am of the opinion that the issues of fact under said subdivision “2” of the notice of motion should be referred to a Special Master to hear such proof respecting the same as the parties may submit, and to make due report to this Court of his findings of fact and conclusions of law. For that purpose those issues are referred to George A. Spohr, Jr., of 51 Chambers Street, New York City, as Special Master to hear and report with all convenient speed.

Decision is reserved by the Court in respect to subdivisions “1,” “3” and “4” of the notice of motion, until the coming in of the Special Master’s report on subdivision “2”.

Submit, on notice, a proposed order for the reference directed by this memorandum.