Allen v. Betterly

258 A.D. 907, 16 N.Y.S.2d 318, 1939 N.Y. App. Div. LEXIS 7537

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1939
• Status: Published

Opinion

Order setting aside service of summons and complaint on the ground that defendant was enticed within this State reversed on the law and the facts, without costs, and matter remitted to Special Term for hearing and determination. Although it is undisputed that defendant was invited to come to New York to discuss the indebtedness which is the subject of the action, it is not undisputed that he had no reason to believe that he was to be served with summons if the discussion did not terminate in an arrangement satisfactory to the plaintiff. On the contrary, if the version set forth in the affidavits in opposition to the motion be found to be true, the defendant knew at the time that he came to New York of plaintiff’s intention to commence an action against him and anticipated service of a summons upon him. If the invitation to defendant was a legitimate one and not a pretext, and the defendant was or should have been aware that there was likelihood of service upon him, no fraud or deceit was practiced upon the defendant and the service should not be set aside. To determine the question of fact, the taking of testimony with opportunity of cross-examination should be afforded. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.