Caldwell v. Korven — 66 N.Y.S. 309

Majority

p. 309

CALDWELL v. DE KORVEN.

(Supreme Court, Appellate Term.

October 4, 1900.)

Headnote

Appeal and Error.

Where, on appeal from a judgment dismissing an action on the grounds that the copy summons served did not contain the date of its return, the record failed to show that the paper purporting to be a copy of the summons was the paper served on defendant, and it did appear by the return of the marshal and by affidavit of plaintiff’s attorney that a copy of the summons was served on defendant, the judgment will be reversed.

Appeal from municipal court, borough of Manhattan.

A ction by Florence E. Caldwell against Victori de Korven. From a judgment dismissing the action, plaintiff appeals..

Reversed.

Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.

Edward S. Caldwell (William E. Deane, of counsel), for appellant.

Nicholas Aleinikoff, for respondent.

The action was dismissed upon the ground that the copy summons served did not contain the date of its return.

p. 310

The record, however, is barren both of proof as well as of any admission that the paper purporting to be a copy of the summons was served upon the defendant. It appears from the return of the marshal, and also, from his affidavit and that of the plaintiff’s attorney, that a copy of the summons was personally served upon the defendant, and, since such fact does not appear to have been traversed, or proof submitted tending to show the contrary, the action of the justice in dismissing the action cannot be upheld.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.