Abendroth & Root Manufacturing Co. v. W. S. Frazier & Co.

140 A.D. 922, 125 N.Y.S. 293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1910
• Status: Published

Opinion

Per Curiam:

This is an appeal from an order of the Special Term denying ijgfendani,’s motion to compel plaintiff’s attorneys to accept service of SB answer, The controversy is one of those unnecessary quarrels between attorneys which could and should have been adjusted by the exercise of a little mutual courtesy and forbearance, and from which the clients of neither can hope to reach any advantage. The questions raised are-technical in the extreme. The defendant’s last day to serve its answer was June 30, 1910. Defendant’s attorney undertook to serve it on that day by mail, sending it as a registered letter. It was received by plaintiff’s attorneys, who elected to return it, as it was improperly verified, sending it also by mail as a " registered letter.” Defendant’s attorney refused to receive the letter from the postman, because in order to do so it would be necessary to sign a receipt, and the letter was in due course returned to plaintiff’s attorneys. July second which fell on Saturday, was a half holiday; July third was Sunday, and July fourth was a full holiday. On July fifth plaintiff’s attorneys personally returned the answer to defendant’s attorney, who now moves that said plaintiff’s attorneys be required to accept it, on the ground that they were guilty of laches. His first proposition is that service of a - paper j?y registered mail is not good service under the Code of Civil Procedure, where the addressee refused to sign the receipt, and does not in fact obtain possession of the paper thus mailed. This objection to the method adopted for returning the answer scarcely comes with good grace from the defendant’s attorney, for he himself was the first to adopt this method of serving papers, and it is, to say the least, unreasonable for him now to complain that plaintiff’s attorneys followed his example. We do not, however, find it necessary to pass upon the questions, .for, assuming that service by registered mail does not ordinarily constitute good service, still we are of opinion that the plaintiffs’ attorneys were not guilty of laches, and did not unreasonably retain the defective pleading. All that plaintiffs were obliged to do was to exercise due diligence in returning the defective pleading. This we think, under all the circumstances, the plaintiffs did. They certainly had no reason to expect that defendant’s attorney would refuse to receive a letter sent by registered mail, after he himself had adopted that mode of service, and they personally returned the answer the first business day after they had learned of the attitude taken by their opponent. The order should be affirmed, with ten dollars costs and disbursements. Present—Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ. Order affirmed,-with ten dollars costs and disbursements.