Melville v. McAvoy

This is an appeal from a judgment entered against the defendant. The appeal is taken under section 311 of the Municipal Court act (Laws 1902, c. 580), on the ground that the defendant was not served with process. The defendant swears that she was not served. An affidavit of the defendant’s husband is submitted, which corroborates the defendant’s statement. Against these affidavits is a statement made by one Casey that he served the summons in this action on the defendant. This statement was not sworn to before a notary public authorized to act in New York county. It fol*765lows that the proof of service was defective and insufficient to justify the entry of judgment upon it.

The judgment is reversed, and the complaint is dismissed, with costs to the appellant. All concur.