Opinion
March 11, 1958.
Appeal from the Supreme Court, Bronx County, WALTER A. LYNCH, J.
Herbert L. Brickman of counsel ( Herbert Herman Hefler with him on the brief), for appellant.
Jeremiah C. Waterman of counsel ( Waterman McLean, attorneys), for respondent.
In this negligence action, appeal is taken from an order setting aside service of the summons and dismissing the complaint on the ground that defendant is not doing business within the State of New York so as to make it subject to process.
A similar motion was made by this defendant in an action brought in Kings County by a different party who sought to recover damages for personal injuries arising out of the same occurrences involved in this action. Special Term (Kings County) referred the matter to an Official Referee who, after taking testimony, reported that defendant is doing business within the State of New York so as to render it amenable to service here. That report was confirmed and on appeal the order of Special Term was affirmed ( Rondinelli v. Chicago, Rock Island Pacific R.R. Co., 5 A.D.2d 842).
Upon the argument of the present motion it was agreed by counsel that this court may consider the testimony taken by the Official Referee in Kings County as though it were part of this record. Accordingly we have before us a record substantially the same as that before the Appellate Division, Second Department, except for a difference in the party plaintiff.
In view of the Second Department's determination the order herein should be reversed on the facts and on the law and the motion to set aside service of the summons and dismiss the complaint should be denied, with $20 costs and disbursements to appellant.
RABIN, J.P., FRANK, VALENTE, McNALLY and STEVENS, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs.