Bartley v. Gordon

Appellate Division of the Supreme Court of New York

Bartley v. Gordon

257 A.D. 895, 12 N.Y.S.2d 347, 1939 N.Y. App. Div. LEXIS 8313

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 1939

StatusPublished

This text of 257 A.D. 895 (Bartley v. Gordon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bartley v. Gordon, 257 A.D. 895, 12 N.Y.S.2d 347, 1939 N.Y. App. Div. LEXIS 8313 (N.Y. Ct. App. 1939).

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Opinion

This is an appeal from an order which denied a motion by appellant to vacate and set aside the order of substituted service and service of the summons and complaint by substituted service and to vacate and set aside the judgment recovered in the action, and also all subsequent orders and proceedings therein. The order granted the alternative relief sought by permitting the appellant to come in and interpose an answer under section 217 of the Civil Practice Act, on certain terms. The [896]*896respondent is a spinster over eighty-five years of age. For many years she has suffered from cancer and heart disease. Until she was seventy-five years of age she worked in a mill in Cohoes and by dint of hard work managed to accumulate and save between $13,000 and $14,000. These moneys were on deposit in various savings banks in the city of Albany. For some years she resided at 275 Remsen street, Cohoes, N. Y., with two maiden aunts of the appellant. When the aunts became ill, the appellant and her husband took up their residence at the same address in order to assist the aunts. After their deaths, they continued to five at the same address, which had become appellant’s residence, and paid her eight dollars per week for room and board. On or about June 25, 1937, the respondent became seriously ill and was unconscious and had the last rites of the Catholic church. On June 28,1937, appellant, by drafts purporting to contain the signature of respondent, drew from all the savings bardes all of the moneys which the respondent had on deposit and deposited the moneys so withdrawn in her own name in the cities of Troy and Albany. Respondent claims she never delivered to appellant any drafts containing her signature or authorized her to withdraw funds. Upon discovering the books missing, demand was made for them and refused and appellant finally refused respondent’s demand to return the books. Appellant disappeared from her residence at 275 Remsen street and did not return until after judgment was recovered in this action. She could not be found after a diligent effort. The substituted service was properly ordered. Order unanimously affirmed, with ten dollars costs and disbursements.

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This is an appeal from an order which denied a motion by appellant to vacate and set aside the order of substituted service and service of the summons and complaint by substituted service and to vacate and set aside the judgment recovered in the action, and also all subsequent orders and proceedings therein. The order granted the alternative relief sought by permitting the appellant to come in and interpose an answer under section 217 of the Civil Practice Act, on certain terms. The [896]*896respondent is a spinster over eighty-five years of age. For many years she has suffered from cancer and heart disease. Until she was seventy-five years of age she worked in a mill in Cohoes and by dint of hard work managed to accumulate and save between $13,000 and $14,000. These moneys were on deposit in various savings banks in the city of Albany. For some years she resided at 275 Remsen street, Cohoes, N. Y., with two maiden aunts of the appellant. When the aunts became ill, the appellant and her husband took up their residence at the same address in order to assist the aunts. After their deaths, they continued to five at the same address, which had become appellant’s residence, and paid her eight dollars per week for room and board. On or about June 25, 1937, the respondent became seriously ill and was unconscious and had the last rites of the Catholic church. On June 28,1937, appellant, by drafts purporting to contain the signature of respondent, drew from all the savings bardes all of the moneys which the respondent had on deposit and deposited the moneys so withdrawn in her own name in the cities of Troy and Albany. Respondent claims she never delivered to appellant any drafts containing her signature or authorized her to withdraw funds. Upon discovering the books missing, demand was made for them and refused and appellant finally refused respondent’s demand to return the books. Appellant disappeared from her residence at 275 Remsen street and did not return until after judgment was recovered in this action. She could not be found after a diligent effort. The substituted service was properly ordered. Order unanimously affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

257 A.D. 895, 12 N.Y.S.2d 347, 1939 N.Y. App. Div. LEXIS 8313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartley-v-gordon-nyappdiv-1939.