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Deutsch v. Traube

131 N.Y.S. 579 Court N.Y. App. Term Decision date 1911-11-10 English

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p. 579
DEUTSCH et al. v. TRAUBE.
(Supreme Court, Appellate Term.
November 10, 1911.)

Headnote

Judgment (§ 351*)—Vacating—Grounds—Falsity of Proof of, Service.
Where affidavits submitted by defendant conclusively showed that, at the time of the service of summons alleged to have been made on him, he was in another city, and that the process server must have been mistaken as to the identity of the person served, if service was made at all, the judgment would be set aside.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 687; Dec. Dig. § 351.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Adolph Deutsch and another against William Traube. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed.
Argued before SEABURY, GUY, and COHARAN, JJ.
Boudin & Riebman, for appellant.
Feltenstein & Rosenstein, for respondents.

The affidavits submitted by the appellant show clearly and conclusively that, at the time-the service of the summons-was alleged to have been made upon him, he was in the city of Boston transacting business, and that the process server must therefore have-been mistaken as to the identity of the person served by him, if service was made upon any person.

Judgment reversed, with costs, and complaint dismissed.