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Scherer v. Ground Hog Mining & Milling Co.

55 N.Y.S. 743 Court N.Y. Sup. Ct. English

Delivered by BISCHOFF, J.

Contents

Majority

p. 743
(28 Civ. Proc. R. 231.)
SCHERER v. GROUND HOG MIN. & MILL. CO.
(Supreme Court, Special Term, New York County.
November, 1898.)

Headnote

Foreign Corporations—Service op Summons.
A service of summons on one whose affidavit shows him to be a director in defendant company, a foreign corporation, will not be set aside, where deponent fails to show that he is not also an officer of the company on whom process may be served, under Code, § 432.
Action by one Scherer against the Ground Hog Mining & Milling Company. Motion to vacate the service of the summons and complaint.
Denied.
Wilcox & Brodek, for the motion.
Hobbs & Gifford, opposed.

The question whether the court has jurisdiction over the Ground Hog Mining & Milling Company, defendant, cannot be determined upon this motion, in view of the insufficiency of the moving affidavit. The affiant, the party upon whom service was made for such defendant, a foreign corporation, avers that he is a director of the latter, and that he is thoroughly familiar with its 'business and with the transaction in suit, and that “the officers and directors of said company are all residents of the state of Colorado, with exception of deponent.” Having alleged so much, the affiant omits any statement to the effect that he is not an officer of the company, and yet, consistently with his affidavit, it may well be that he is such, and thus qualified to receive service. Code, § 432. Upon a motion of this character, it is for the moving party to distinctly negative the existence of circumstances which could render the service valid under the statute (Silver v. Assurance Co., 3 App. Div. 572 , 575, 38 N. Y. Supp. 335 ), and this has not been done.

Motion denied, with $10 costs.

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