Eureka Soap Co. v. Jungmann — 121 N.Y.S. 233

Majority

p. 233

EUREKA SOAP CO. v. JUNGMANN.

(Supreme Court, Appellate Term.

February 18, 1910.)

Headnote

Courts (§ 189^[1] ) — Municipal Courts — Judgment — Reversal — Absence of Service.

Judgment against defendant, on an appeal under Municipal Court Act (Laws 1902, c. 580) § 311, relative to appeal by a defendant from a judgment in an action in which he did not appear, will be reversed; defendant’s affidavits showing that defendant, as a person or a corporation, was not properly served with summons and complaint, but that the person served was not an officer, managing agent, or director of, but only a pharmacist employed by, defendant.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.^[1] ]

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

Action by the Eureka Soap Company against J. Jungmann. From a judgment for plaintiff, defendant appeals.

Reversed, and complaint dismissed.

Argued before SEABURY, LEHMAN, and BIJUR, JJ.

David Paine, for appellant.

Edgar N. Dollin, for respondent.

This appeal is taken pursuant to the provisions of section 311 of the Municipal Court act (Laws 1902, c. 580). The complaint served with the summons sets forth that the defendant appellant is a corporation. The appellant’s' affidavits show that the person who was served with the summons and complaint was not an officer, managing agent, or director, but was only a pharmacist employed by the defendant corporation. Whether or not the action against “J. Jung7 mann” was against a natural person or a corporation does not appear in the summons; but it is sufficiently clear from the affidavits of the appellant that J. Jungmann neither as a natural person nor as a corporation was properly served.

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