Sugerman v. Gibbons — 154 N.Y.S. 101

Majority

p. 101

SUGERMAN et al. v. GIBBONS.

(Supreme Court, Appellate Term, First Department.

June 28, 1915.)

Headnote

Courts <S=M89—Municipal Court—Process—Service.

A Municipal Court judgment will be reversed, where it is conclusively shown by affidavit that the summons was served upon defendant’s brother, and not on defendant, and that the process server, though informed, of his mistake, made no effort to serve defendant.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <§^189.]

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

Action by Mark H. Sugerman and others against Walter G. Gibbons. From a judgment rendered in favor of plaintiffs, defendant appeals. Reversed.

Argued June term 1915, before GUY, BIJUR, and PAGE, JJ.

Eugene F. McGee, of New York City, for appellant.

Gates Hamburger, of New York City, for respondents.

This appeal is brought under section 311 of the Municipal Court Act (Laws 1902, c. 580), upon the ground of non-service of the summons upon the defendant. The affidavits on the part of the defendant are full and conclusive, and show that the summons herein was served upon the brother of the defendant in the county courthouse, Special Term, Part I, instead of on the defendant, who was a clerk in the register’s office. The process server was informed of his mistake,- but made no effort to serve the right party after being so informed.

Judgment reversed, with costs.