
    Solomon Phillips, Edward Phillips and Joseph Phillips, Respondents, v. Albert, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    .Trial—tissue raised by a traverse to return of summons in Municipal Court — evidence — appeal.
    Where, on the trial of an issue raised by a traverse to the return of the summons in a Municipal Court action, defendant appearing specially, the affidavit of the process server shows that on a certain date he served the summons on S, the president of the defendant corporation, and where the testimony of S as a witness for plaintiffs was that he was not connected with defendant on said date, that he had terminated his connection as an officer and director of defendant more than two weeks before, and that he never was a stockholder thereof, and such testimony was not disputed either directly or inferentially, an order overruling the traverse and giving judgment in plaintiffs’ favor is reversible error.
    Appeal by defendant from an order and decision of the Municipal Court of the city of New York, borough of Manhattan, second district, overruling the traverse of the defendant, and from the judgment thereupon entered in favor of plaintiffs.
    Leon Kaufman, for appellant.
    Cohen & Shiverts, for respondents.
   Per Curiam.

Upon the return day of the summons in this case, the defendant appeared specially and traversed the return. The case was thereupon set down for the trial of this issue. This practice was correct. In Roberts & Lewis Co. v. Dale, 74 Misc. Rep. 390, this court held that the jurisdiction of the Municipal Court could not be attacked upon a motion; that it could be raised upon a trial, and that a special appearance gives a limited jurisdiction to the court to try the issue raised by the traverse. The affidavit of the process server was, that he served the summons upon one Albert Strauss, the president of the defendant corporation, on January 29, 1913. Strauss was called as a witness by the plaintiffs, who testified that he was not then connected with the defendant, and that he had terminated his connection as an officer and director on January 7, 1913; that he was never a stockholder of the company, and that he was then employed as a cutter upon a salary. This testimony was not disputed either directly or inferentially. Under such circumstances, the overruling of the traverse and giving judgment in favor of the plaintiffs was error.

Judgment reversed, with costs, and complaint dismissed, with costs.

Present: Lehman, Bijur and Whitaker, JJ.

Judgment reversed, with costs, and complaint dismissed, with costs.  