Phillips v. Albert, Inc.

81 Misc. 131, 142 N.Y.S. 325

• Court: New York Supreme Court
• Decided: June 15, 1913
• Status: Published

Opinion

Per Curiam.

Upon the return day of the summons in this case, the defendant appeared specially and traversed the return. The case was thereupon set down for the trial of this issue. This practice was correct. In Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, this court held that the jurisdiction of the Municipal Court could not be attacked upon a motion; that it could be raised upon a trial, and that a special appearance gives a limited jurisdiction to the court to try the issue raised by the traverse. The affidavit of the process server was, that he served the summons upon one Albert Strauss, the president of the defendant corporation, on January 29, 1913. Strauss was called as a witness by the plaintiffs, who testified that he was not then connected with the defendant, and that he had terminated his connection as an officer and director on January 7, 1913; that he was never a stockholder of the company, and that he was then employed as a cutter upon a salary. This testimony was not disputed either directly or inferentially. Under such circumstances, the overruling of the traverse and giving judgment in favor of the plaintiffs was error.

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

Present: Lehman, Bijur and Whitaker, JJ.

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