Opinion
March 7, 1929.
Appeal from the Municipal Court, Borough of Manhattan, First District.
Samuel Bikoff, for the appellant.
Joseph W. Landes, for the respondent.
Service of the summons in this case on the foreign corporate defendant was made by delivery thereof to the person in whose possession property of the defendant was found available for attachment. Section 48 of the Municipal Court Code, in so far as it authorizes such service upon a non-resident defendant, is unconstitutional. ( Nerenberg v. Keith, 101 Misc. 551.) The fact that tangible property was levied on by the marshal would not change the situation. The test of the constitutionality of the statute is what might be done under its terms, not what was done in a particular case.
Order reversed, with ten dollars costs, and motion granted, with ten dollars costs.
All concur; present, LYDON, CALLAHAN and PETERS, JJ.