Dah Talmage's Sons Co. v. Epstein

Appellate Terms of the Supreme Court of New York

Dah Talmage's Sons Co. v. Epstein

140 N.Y.S. 394

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 7, 1913

StatusPublished

This text of 140 N.Y.S. 394 (Dah Talmage's Sons Co. v. Epstein) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dah Talmage's Sons Co. v. Epstein, 140 N.Y.S. 394 (N.Y. Ct. App. 1913).

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Opinion

BIJUR, J.

This is an appeal taken under the provisions of section 311 of the Municipal Court Act (Laws 1902, c. 580). The defendant submits his own affidavit, in which he swears that he was never served with the summons in the action, and accounts for his whereabouts on the day service is alleged to have been made. He is, in a measure, corroborated by the affidavits of his son, his wife, and a salesman in his employ. The only evidence offered in support of the service is the formal affidavit of the process server upon the back of the summons. The process server was then, but is not now, in the employ of a detective agency. His former employer swears that on January 28, 1913, in a conversation with him, “he reiterated the facts concerning the service of the summons and complaint herein.” What those facts were does not appear, nor is there any reason given why an affidavit setting them forth was not then obtained.

Judgment reversed, with costs, and complaint dismissed. All concur.

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BIJUR, J.

This is an appeal taken under the provisions of section 311 of the Municipal Court Act (Laws 1902, c. 580). The defendant submits his own affidavit, in which he swears that he was never served with the summons in the action, and accounts for his whereabouts on the day service is alleged to have been made. He is, in a measure, corroborated by the affidavits of his son, his wife, and a salesman in his employ. The only evidence offered in support of the service is the formal affidavit of the process server upon the back of the summons. The process server was then, but is not now, in the employ of a detective agency. His former employer swears that on January 28, 1913, in a conversation with him, “he reiterated the facts concerning the service of the summons and complaint herein.” What those facts were does not appear, nor is there any reason given why an affidavit setting them forth was not then obtained.

Judgment reversed, with costs, and complaint dismissed. All concur.

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Bluebook (online)

140 N.Y.S. 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dah-talmages-sons-co-v-epstein-nyappterm-1913.