Mutual Alliance Trust Co. v. Greenberger

86 N.Y.S. 729

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 23, 1904
• Status: Published

Opinion

McCALL, J.

The respondent1 filed no brief in this case. It is conceded that the copy of the summons served upon the defendant herein was dated February 26, 1903, and made returnable February 10, 1903. Defendant appeared specially by 'motion before and again at the return day, and asked that the proceedings be discontinued, upon the ground that no service of the summons in the case had been made upon him. The claim of the plaintiff was that when the summons was served upon the defendant a clerk of plaintiff’s attorney, discovering the error in the day named in the summons as the return day thereof, offered to correct the same. The court thereupon denied defendant’s motion, and the plaintiff took an inquest.

The complaint was “damages for fraud and fraudulent representations,” and upon affidavits setting up allegations which it is claimed constituted fraud on the part of the defendant an attáchment was issued, and a levy made thereunder upon property of defendant. Neither the affidavits used to obtain the warrant of attachment nor the evidence given on the inquest constitute fraud or fraudulent representations. The plaintiff’s testimony was that: “We allowed Mr. Greenberger to overdraw $70 and some cents on four checks.” This sum the defendant had not paid. The court below acquired no jurisdiction over the person of the defendant, and the testimony fails to show any evidence to warrant the judgment rendered.

Judgment reversed, with costs. All concur.