Fitzgerald v. Dakin

101 A.D. 261, 91 N.Y.S. 1003

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1905
• Status: Published

Opinion

Parker, P. J.:

, The only servicie that is claimed to have been made of the answer and notice in question is that it was dropped loosely, and without being inclosed in any wrapper at ah, in the office letter box of the plaintiff’s attorney, and without being directed to such attorney., Very clearly, such mode'of service is not authorized. It does not at all meet the requirements of subdivision 3 of section 797 of the Code of Civil Procedure, nor does it satisfy any other mode of servicev tolerated by said Code. ' The plaintiff’s attorney was, therefore, regular- in returning the papers in the way he did return them, and I know of no aúthority for the court’s, requiring him to aqcept such service. There is no effort .made in .this, matter.to excuse default in the service of the answer, nor does the order appealed "from purport to be an. order excusing the default and permitting the defendant to'serve another answer. It squarely requires the plaintiff to accept, as good service, a service that was clearly unauthorized by any rule of practice. This may not be done, and, therefore, the order appealed from should be reversed, with ten dollars, costs and disbursements.-

All concurred.,

Order reversed, with ten dollars costs and disbursements.