Falvey v. Cornwall Terminal Co.

209 A.D. 448, 204 N.Y.S. 525, 1924 N.Y. App. Div. LEXIS 8651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1924
• Status: Published

Opinion

Per Curiam:

The defendant, a foreign corporation, designated a person upon whom papers could be served within the State. On July 24, 1923, the summons and complaint were duly served by delivering copies thereof to such person. The defendant did not appear in the action. The plaintiff repeatedly wrote to the defendant, calling its attention to the fact that service had been made as stated, asking it to appear and offering to extend its time to answer. The defendant paid no attention to such letters. Judgment was taken by default on October 2, 1923, and execution issued. The defendant was so advised by letter from the plaintiff’s attorney. Nothing was done by the defendant and on December 6, 1923, the plaintiff’s attorney wrote it that he would instruct the sheriff to sell its property in Oswego, N. Y., to satisfy the execution. The defendant did not answer the letter or make a motion to open the default until January 23, 1924. Motion papers were then served but they did not disclose any meritorious defense, a copy of a proposed answer was not served, and no excuse was offered for the delay in making the motion or for failure to answer. On the other hand, it appears without dispute that the defendant was properly served on July 24, 1923; that it had notice not only by the summons and complaint but by numerous letters from the plaintiff’s attorney. Indeed, the plaintiff’s attorney used every means within his power to induce the defendant to pay some attention to the action and extended to the defendant every courtesy possible. The defendant, by letter, denied that there was any person within the State upon whom the plaintiff could make service, although it had designated a person upon whom to serve, and during all the time one or more of its officers kept an office in New York city, which it admittedly maintained. It does not deny that it received the summons and complaint and the letters from the plaintiff’s attorney. It is quite apparent that it was attempting to prevent the plaintiff, by every means within its power, from getting service upon it within the State.

The papers disclose a deliberate attempt to prevent service and an absolute want of good faith. Under such circumstances a motion to open a default should be denied.

All concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.