Opinion
December, 1928.
Order denying motion to strike out answer, to adjudge defendant to be in default, and to assess damages affirmed, with ten dollars costs and disbursements. We are of opinion that the owner of the property was not served with the summons and complaint, but that her daughter (who answered) was served, and that the latter was not only named as the defendant but was the one intended to be named and served, this view being fortified not alone by the affidavits and the testimony taken by the learned Special Term justice, but also by the examination before trial of the person served; from which circumstance and the facts elicited upon the examination the only permissible inference is that plaintiff knew that the daughter was the defendant named and the one served. Lazansky, P.J., Kapper, Hagarty, Seeger and Scudder, JJ., concur.