Fosullo v. Bonjiorno — 105 N.Y.S. 155

Majority

p. 155

FOSULLO v. BONJIORNO.

(Supreme Court, Appellate Term.

June 27, 1907.)

Headnote

Courts—Municipal Courts—Procedure on Appeal.

Where, on appeal from the Municipal Court, the defendant presents affidavits, copies of which had been served on plaintiff’s attorney, showing that no service of process was had on him, and the plaintiff filed no affidavits in reply, the allegations of the defendant’s affidavits must be taken as true, and the judgment reversed.

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

Action by Gaetano Fosullo against Giovanni Bonjiorno. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before GILDERSLEFVE, P. J., and SEABURY and PLATZEK, JJ.

Meyer Greenberg, for appellant.

Defendant appeals from a judgment of the Municipal Court, and hands up affidavits, copies of the same having been previously served on the plaintiff’s attorney, showing that no service > of the process was ever made upon him. The plaintiff has filed no affidavits in reply, and the allegations of the defendant contained in his affidavits must be taken as true.

Judgment reversed, with costs, and - complaint dismissed.