Dege v. Mascot Realty Corp.

243 A.D. 546

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1934
• Status: Published

Opinion

Order of the County Court of Suffolk county vacating, on the ground of non-service of the summons and complaint, a judgment entered as upon a default in an action for a balance due for work, labor and services, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion remitted to that court to take oral proof on the issue of fact as to whether service of process was in fact made upon Christina Kousi, secretary and director of the defendant corporation. Proper practice required that oral testimony be taken on the issue respecting service of process. All the court had before it were the two affidavits, one of Kousi, denying she had been served, and one by Gottlieb, asserting that he had made service. This afforded no basis for deciding the question of fact. These two individuals should have been examined and subjected to cross-examination, and Irene Langis, who is said to have been served by mistake, should have been produced for examination and cross-examination. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ. concur.