Newmark v. Horowitz Bros. — 116 N.Y.S. 564

Majority

p. 564

NEWMARK et al. v. HOROWITZ BROS.

(Supreme Court, Appellate Term.

May 7, 1909.)

Headnote

Judgment (§ 138*)—Default Judgment—Setting Aside.

Default judgment against defendant, a corporation, will be reversed, and complaint dismissed; the person served with summons having been neither a director or officer of defendant, or authorized to accept service

p. 565

for it, and it not having appeared, except specially to have judgment set aside.

[Ed. Note.—Por other cases, see Judgment, Dec. Dig. § 138.*]

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

Action by William Newmark and others, copartners doing business as Newmark & Davis, against Horowitz Bros., a domestic corporation. From a judgment by default, defendant appeals.

Reversed, and complaint dismissed.

Argued before GIEDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Nathan Burkan, for appellant.

Durst, Langfur & Altman, for respondents.

It appears t'o be established by the affidavits, without specific contradiction, that the person served with the summons was neither a director nor an officer of defendant corporation, nor in any way authorized to accept service for the corporation, nor has the corporation appeared'in the action, except specially to have the judgment set aside.

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