Hyperlawhypertext legal database Dah Talmage's Sons Co. v. Epstein 140 N.Y.S. 394

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Dah Talmage's Sons Co. v. Epstein

140 N.Y.S. 394 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.

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p. 394
DAH TALMAGE’S SONS CO. v. EPSTEIN
(Supreme Court, Appellate Term, First Department
March 7, 1913.)

Headnote

Judgment (§ 162*)—Default Judgment—Process—Affidavits—Reversal.
When judgment has been rendered against a defendant who did not appear, but who submits an affidavit that he was never served with the summons, and therein accounts for his whereabouts on the day service is alleged to have been made, which is in a measure corroborated by other affidavits and contradicted only by the formal affidavit of the-process server who was employed by a detective agency, and statements by such server not set fort]) in an affidavit, the judgment will be reversed and. complaint dismissed.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 319-322; Dec. Dig. § 162.*]
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
p. 395
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Dan Talmage’s Sons Company against Solomon Epstein. Judgment for plaintiff, and defendant appeals. Reversed.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
Nathan Bardach, of New York City, for appellant.
Charles O. Maas, of New York City, for respondent.

This is an appeal taken under the provisions of section 311 of the Municipal Court Act (Laws 1902, c. 580). The defendant submits his own affidavit, in which he swears that he was never served with the summons in the action, and accounts for his whereabouts on the day service is alleged to have been made. He is, in a measure, corroborated by the affidavits of his son, his wife, and a salesman in his employ. The only evidence offered in support of the service is the formal affidavit of the process server upon the back of the summons. The process server was then, but is not now, in the employ of a detective agency. His former employer swears that on January 28, 1913, in a conversation with him, “he reiterated the facts concerning the service of the summons and complaint herein.” What those facts were does not appear, nor is there any reason given why an affidavit setting them forth was not then obtained.

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