278 A.D. 995 | N.Y. App. Div. | 1951
Appeal by defendant designated as Tele King ■Corp. of New York, from an order of the Supreme Court, Sullivan County, denying its motion to vacate a purported service of a summons upon it. The summons was served in New York State upon one Alexander Wellington. The moving papers assert that there is a New York corporation known as Tele King Corporation with which Wellington has no connection as a person upon whom process may be served. It is further asserted that Wellington is president of Tele King Distributors, Inc., not named as a party to this action. Wellington swears that he knows of no corporation known as “ Tele King Corp. of New York” and has no connection with any such corporation. On the other hand, plaintiff asserts it has a written contract which is the basis of the action which is signed “ Tele King Corp. of New York, by Alexander Wellington, President”. Plaintiff makes no claim against either of the other corporations mentioned. It is not a ease of misnomer. To succeed plaintiff must allege and establish the corporate existence of the named defendant. (Rules Civ. Prac., rule 93.) Plaintiff cannot be deprived of the opportunity to establish corporate existence by a preliminary special appearance and motion to set aside the service. Under the circumstances present here the lower court properly denied the motion. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ.
