Scherer v. Ground Hog Mining & Milling Co.

New York Supreme Court

Scherer v. Ground Hog Mining & Milling Co.

55 N.Y.S. 743, 28 N.Y. Civ. Proc. R. 231

DecidedNovember 15, 1898

StatusPublished

This text of 55 N.Y.S. 743 (Scherer v. Ground Hog Mining & Milling Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scherer v. Ground Hog Mining & Milling Co., 55 N.Y.S. 743, 28 N.Y. Civ. Proc. R. 231 (N.Y. Super. Ct. 1898).

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Opinion

BISCHOFF, J.

The question whether the court has jurisdiction over the Ground Hog Mining & Milling Company, defendant, cannot be determined upon this motion, in view of the insufficiency of the moving affidavit. The affiant, the party upon whom service was made for such defendant, a foreign corporation, avers that he is a director of the latter, and that he is thoroughly familiar with its 'business and with the transaction in suit, and that “the officers and directors of said company are all residents of the state of Colorado, with exception of deponent.” Having alleged so much, the affiant omits any statement to the effect that he is not an officer of the company, and yet, consistently with his affidavit, it may well be that he is such, and thus qualified to receive service. Code, § 432. Upon a motion of this character, it is for the moving party to distinctly negative the existence of circumstances which could render the service valid under the statute (Silver v. Assurance Co., 3 App. Div. 572, 575, 38 N. Y. Supp. 335), and this has not been done.

Motion denied, with $10 costs.

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BISCHOFF, J.

The question whether the court has jurisdiction over the Ground Hog Mining & Milling Company, defendant, cannot be determined upon this motion, in view of the insufficiency of the moving affidavit. The affiant, the party upon whom service was made for such defendant, a foreign corporation, avers that he is a director of the latter, and that he is thoroughly familiar with its 'business and with the transaction in suit, and that “the officers and directors of said company are all residents of the state of Colorado, with exception of deponent.” Having alleged so much, the affiant omits any statement to the effect that he is not an officer of the company, and yet, consistently with his affidavit, it may well be that he is such, and thus qualified to receive service. Code, § 432. Upon a motion of this character, it is for the moving party to distinctly negative the existence of circumstances which could render the service valid under the statute (Silver v. Assurance Co., 3 App. Div. 572, 575, 38 N. Y. Supp. 335), and this has not been done.

Motion denied, with $10 costs.

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Bluebook (online)

55 N.Y.S. 743, 28 N.Y. Civ. Proc. R. 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherer-v-ground-hog-mining-milling-co-nysupct-1898.

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