Bowman v. Puig

Order unanimously reversed on the law and in the exercise of discretion, without costs, and the motion is remanded to Special Term to make a determination, after taking proof as to all relevant facts and circumstances concerning the alleged service in 1957 of the amended complaint and the alleged oral consent or stipulation preceding it. The moving defendants are entitled to a dismissal of the complaint for lack of prosecution if no pleading was ever served upon their attorney. If Special Term finds that service of the amended complaint was duly made upon defendants’ attorney, appropriate proceedings should be taken to join issue properly and to rectify the improper joinder of additional parties not named in the summons. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Stevens, JJ.