Majestic Metal Bed Co. v. Mutual Furniture Co.

152 N.Y.S. 994

Opinion

COHALAN, J.

[1] The process server in this case made an affidavit in which he testified that he served the summons upon Hayward Ulman, the “secretary” of the defendant. Upon the return day of the summons the defendant appeared specially, and filed an affidavit made by one Jack Ulman, in which he stated that he was the person served, and that he was not and never had been an officer of the defendant corporation. The issue thus raised was, set down for trial for December 11, 1915, and this practice was correct. Robert & Lewis Co. v. Dale, 74 Misc. Rep. 390, 132 N. Y. Supp. 405; Phillips v. Albert, 81 Misc. Rep. 131, 142 N. Y. Supp. 325.

[2] Upon the trial no testimony whatever was offered by the plaintiff. Jack Ulman, in testifying that the process server handed him a summons in the action, said:

“I saw that it was against the company, and I told him that I was no officer of the company, and never was. I told him my name, and he said it makes no difference.”

Hayward Ulman, in addition, testified that he was the secretary of the defendant, and that he had not been served with the summons in the action. Upon this undisputed testimony the court below should have sustained the traverse and dismissed the action.

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