Breger v. Catalano , 158 N.Y.S. 671 ( 1916 )

PER CURIAM.

A summons was issued in this action in favor of the plaintiff against Edward Catalano; the name “Edward” being stated as being fictitious. It appears from an affidavit made by one Eugenio Catalano that upon the trial the fictitious name of “Edward” was changed to Eugenio and a judgment entered against him. Eugenio Catalano did not appear in the action in any way, and after ascertaining that judgment had been rendered against him he made a motion to vacate said judgment, which motion was denied, and from the order denying the motion this appeal comes up.

Eugenio Catalano makes oath that he was never served with a summons in this action. One Salvatore Catalano swears that he was served with the summons. The process server swears that he served the summons upon Edward Catalano, and that he knew him to be the defendant in the action. It is clear that this affidavit in no way contradicts the statements of Edward and Eugenio Catalano. Service upon Edward Catalano is not service upon Eugenio, and there are no facts or circumstances shown by which it could be determined that Edward and Eugenio Catalano are the same persons. The judgment must therefore be reversed.

Judgment reversed, with $10 costs.