Hyperlawhypertext legal database Booth v. A. Feldman Const. Co. 139 N.Y.S. 315

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Booth v. A. Feldman Const. Co.

139 N.Y.S. 315 Court Argued November term, 1912, before LEHMAN and PAGE, JJ. Decision date 1913-01-15 English

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p. 315
BOOTH v. A. FELDMAN CONST. CO.
(Supreme Court, Appellate Term, First Department.
January 15, 1913.)

Headnote

•Corporations (§ 522[1] )—Judgment—Process to Support—Service.
Service of summons upon an agent of a corporation, the agent being the sole defendant named, not shown to be an officer of the company, nor to have authority to consent to an amendment of summons by naming the company as defendant, was not effective to bring the company into court, so that a judgment rendered against it must be reversed.
[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2035, 2099-2113; Dec. Dig. § 522.*]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Ernest Booth against the A. Eeldman Construction Company. From a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals.
Reversed, and complaint dismissed.
Argued November term, 1912, before LEHMAN and PAGE, JJ.
Benjamin Berger, of New York City, for appellant.
Leo R. Lawlor, of New York City, for respondent.

This action to recover the value of services rendered was commenced by the service of the summons upon one Annie Feldman, the sole defendant named therein. On the trial it appeared •that the plaintiff had been employed by Mrs. Feldman, but that she was acting as agent for the Feldman Construction Company, where

p. 316
upon the court ordered the summons to be amended by naming that company as defendant. There was no evidence that Mrs. Feldman was an officer of the company, or had any authority to consent to1 such amendment. The trial proceeded, and resulted in á judgment in favor of the plaintiff and against the Feldman Construction Company, which had not been served, nor had it appeared in the action. Subsequently, on plaintiff’s motion, without notice, an order was entered changing the name of the defendant so substituted to A. Feldman Construction Company.

The defendant corporation never having been served or brought into court in any manner, the judgment must be reversed, with costs, and the complaint dismissed, with costs.