Pfotenhauer v. Brooker — 101 N.Y.S. 762

Majority

p. 762

PFOTENHAUER et al. v. BROOKER.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

Process—Proof of Service—Weight of Evidence.

Evidence held, to show that defendant was not served with summons.

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Paul Pfotenhauer and another against Frederick W. Brooker. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

George H. Mallory, for appellant.

Joseph Hahn, for respondents.

This is an appeal taken by the defendant upon the ground that no service of the summons was ever made upon him, and is submitted upon affidavits. The affidavit of the defendant is positive and unequivocal to the effect that not only was no summons ever served upon him in this action, but at the time when and place where the service was alleged to have been made he was not present, and had not been at said place. A man named William E. Brooker testifies that he resides at the place where service of the summons was made, and that he is the person who was served with the summons in this action, and in this he is corroborated by his wife and son. The affidavit of the process server as to the identity of the defendant is not clear, and we are constrained to hold that from the proof submitted the defendant was not served, and that the entry of the judgment was not authorized.

Judgment reversed, with costs.