Buchanan v. Prospect Park Hotel Co.

14 Misc. 435, 35 N.Y.S. 712, 70 N.Y. St. Rep. 447

• Court: City of New York Municipal Court
• Decided: November 15, 1895
• Status: Published

Opinion

Van Wyok, Ch. J.

The appeal is from an order denying motion to vacate judgment on the ground that summons was .not served upon defendant.

The judgment was entered on October twenty-third, and the proof of service is that the summons and complaint were served on’the sixteenth on one Alexander, known to tie the president of defendant. ‘ . ■

The plaintiff’s attorney was informed by one Doyle, attorney for Alexander, by letter and orally on the twenty-second, that Alexander, had had no connection whatever. with the defendant company for two months, when he had ceased to be an officer thereof by reason of- his resignation as president, and plaintiff’s attorney now deposes that ‘Die did not believe in the bona Jides of Alexander’s resignation when he saw Hr. Doyle, and does not believe in it now.”

However, deféndant’s proof on this motion is overwhelm-? ing and uncontradicted that Alexander had resigned -as- president in August, and that his successor was then elected, and that since then he had had “ no connection with, or right, title or,interést"in the defendant, directly or indirectly, either as a stockholder, officer, agent,' clerk or employee.”

The service on Alexander was not service on the defendant company, and the judgment should have been vacated.

Order reversed, with costs, and motion to vacate grafted, with costs.

Fitzsimons, J.y-concurs.

Order reversed, with costs, and motion granted, with costs.