
    Morris Biala, Appellant, v. Jack Abramow, Respondent.
    Supreme Court, Appellate Term, First Department,
    February 14, 1935.
    
      Marvin C. Cohen, for the appellant.
    
      George G. Lake, for the respondent;
   Per, Curiam.

The summons and complaint in this action for conversion were claimed to have been served on the defendant on April 3, 1934. During the months of May, June and July, 1934, the defendant appeared in proceedings supplementary to execution, he was examined, a receiver of his assets was appointed, he turned over some of his assets to the receiver, and he submitted an affidavit on a motion made to punish him for contempt for failure to turn over all of his assets. During all this time he in no way raised any question concerning the validity of the judgment entered against him on default, and made no claim that he had not been served in the action. It was only after he was imprisoned on October 15, 1934, pursuant to a body execution, that for the first time he asserted the claim that he had not been served with the summons. His testimony in that regard is uncorroborated; he failed, without explanation, to produce a material witness who was in a position to testily with respect to the alleged service.

Under all those circumstances, and notwithstanding the inconsequential error in the affidavit of service with respect to the residence of the process server, the court below erred in setting aside the judgment and the service of the summons.

Order vacating the judgment and service of summons reversed, with ten dollars costs, and motion denied.

All concur; present, Hammer, Callahan and Shientag, JJ.  