Mears v. North American Brewing Co.

Full title: CAMDEN MEARS and Others, Copartners in Business, and Doing Business under…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 4, 1906

113 App. Div. 41 (N.Y. App. Div. 1906)

98 N.Y.S. 1042

Opinion

May 4, 1906.

Fernando Solinger, for the appellant.

Henry Bonawitz, for the respondents.

MILLER, J.:

The defendant appeals from a judgment of the Municipal Court and shows by affidavit that personal service of the summons was not made upon it and that it made no appearance in the action. The respondents do not dispute this, and the affidavit of service upon which the judgment was rendered fails to show service on the defendant. An appeal was the proper remedy. (Code Civ. Proc. § 3057; Lazarus v. Boynton, 86 N.Y. Supp. 104.) The judgment of the Municipal Court must be reversed, with costs.

JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.

Judgment of the Municipal Court reversed, with costs, and complaint dismissed.