While the usual practice where the court decides
that a defendant has not been served with process is to dismiss the action (Tarpey v. Jersey Co-Operative Co., 98 Misc. 302), where recourse'is had to the clerk, under section 18 of the Municipal Court Code, for the issuance of the summons to toll the Statute of Limitations, the fact that the summons is not served on the proper parties in the first instance does not warrant the dismissal of the complaint unless there appears a lack of due diligence within the meaning of the statute in effecting service. As there is no evidence in the record which would authorize such a finding here the decision of the court below cannot be sustained.
Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied, without prejudice, to an application to dismiss the action on the ground of lack of due diligence in service of the summons.
All concur; present, Hammer, Callahan and Shientag, JJ.