Grossman Bros. v. Atlas Construction Co.

PER CURIAM. Service of was made on a who to January 5, 1909, had been president of defendant, but had ceased all connection with defendant for about six months previous to such service. Judgment was taken by default. Defendant has not appeared in the action in any way, except for the purpose of this appeal from said judgment. Defendant’s practice in taking this appeal from the judgment, entered without service of process or appearance of defendant in the action, was proper. Swift & Co. v. Mutual Comm. Co. (Sup.) 107 N. Y. Supp. 40; Oswego County Savings Bank v. Town of Genoa, 28 Misc. Rep. 72, 59 N. Y. Supp. 829; Burkhard v. Smith, 19 Misc. Rep. 31, 42 N. Y. Supp. 638. The facts are practically undisputed, as the respondent’s statements, with regard to the position of the person served with process, do not directly contradict the facts set forth in the appellant’s affidavit to the effect that said person was not connected with the defendant at the time of the service, nor for about six months previous thereto. The fact that the City Court refused to vacate an order in supplementary proceedings does not render res adjudicata in this court plaintiff’s claim that the person served was defendant’s president at the time of service. The court below never acquired jurisdiction of defendant, and the judgment must be reversed, with costs, and the complaint dismissed. Judgment reversed, with costs, and complaint dismissed.