Caldwell v. de Korven

The action was dismissed upon the ground that the copy summons served did not contain the date of its return. The record, however, is barren both of proof as well as of any admission that the paper purporting to be a copy of the summons was served upon the defendant. It appears from the return of the marshal, and also from his affidavit and that of the plaintiff’s attorney that a copy of the summons was personally served upon the defendant, and since such fact does not appear to have been *726traversed, or proof submitted tending to show the contrary, the action of the justice in dismissing the action cannot be upheld.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.