Opinion
October 12, 1909.
Denis O' L. Cohalan, for the appellant.
No appearance for the respondent.
The defendant shows by affidavit that a summons, returnable on the 19th day of December, 1905, was served upon him; that he appeared at that time by attorney, but that the plaintiff did not appear or file proof of service, and that the case was dismissed. The judgment appealed from was rendered on the 29th day of December, 1905, on proof by affidavit of the service of a summons on the defendant on the 22d day of December, 1905. But the defendant swears positively that no such summons was ever served upon him, and that he never learned of the judgment until shortly before taking this appeal. In support of the judgment, the affidavit of the one who claims to have served the summons is presented, which positively states that the summons was served on the defendant on the 22d day of December, 1905. However, the affiant does not state that he was personally acquainted with the defendant or even knew him by sight. He says that after the day on which the summons was served he described the man upon whom service was made to the plaintiff, and that the description tallied with a description given him by employees in the plaintiff's office. Manifestly that is not sufficient to overcome the positive statement of the defendant.
The judgment is reversed.
JENKS, GAYNOR, BURR and RICH, JJ., concurred.
Judgment of Municipal Court reversed and new trial ordered, costs to abide the event.