Cohen v. Lansburger

On the record presented, and in accordance with section 237-a of the Civil Practice Act, the Special Term should have directed a trial of the issue of fact whether the person with whom process had been left was a person in charge of the business in which the defendants are engaged within the State of New York. The trial before a Referee or jury shall be limited to this issue, the defendants’ special appearance being based on their objection that no service was had upon a proper party under section 229-b of the Civil Practice Act (Genovese v. Roan, 1 A D 2d 935).

The order should be modified, with $10 costs and disbursements, by directing a trial of the issue of fact whether the person with whom process had been left was in charge of the business in which the defendants are engaged within the State of New York.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Order modified, etc.