Sugerman v. Gibbons

Appellate Terms of the Supreme Court of New York

Decided June 28, 1915

Appellate Terms of the Supreme Court of New York · decided 1915-06-28

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.]

Decided 1915-06-28

PER CURIAM.

¶1This 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.

¶2Judgment reversed, with costs.