Opinion
April 19, 1943.
Walter H. Bond for defendant.
Reuben Golin for plaintiff.
Motion to confirm the report of the Official Referee is granted. However, irrespective of whether or not the party served was in fact a "managing agent," the failure to fully comply with subdivision 3 of section 229 of the Civil Practice Act is fatal to the service. The affidavit is silent as to any attempt to effect service under subdivision 2 of section 229 of the Civil Practice Act. Proof that service could not be made under subdivision 1 is not of itself sufficient to dispense with the method set forth in subdivision 2. The motion to vacate and set aside the service of the summons is granted. ( McKeon v. McGowan Sons, 229 A.D. 568.)