Loucks v. Hallenbeck

48 A.D. 426, 63 N.Y.S. 1

Opinion

Smith, J.:

From the opinion handed down in the court below, we learn that this judgment was reversed upon the ground that no jurisdiction was obtained of the defendants by reason of the fact that Orison L. Hannay, who served the summons, was not deputized at the plaintiff’s request. With this conclusion of the learned county judge we .are unable to agree. Hannay was plaintiff’s agent, had possession ■of the note, demanded its payment and commenced the action which was afterwards prosecuted by the plaintiff’s direction. From his ■evidence we think there fairly appears an authority to do what was usual in making such collection, botli in the. institution of the action and in the making of the request for a deputization of a party other than the constable to serve the summons. Thus authorized, his request was the request of the plaintiff.

It is contended, however, that if he represented the plaintiff to /make the request, he must come within the inhibition of the statute which precludes the plaintiff himself from serving the summons. While the law authorizes a person to act through an agent and thus become bound, the appointment of the plaintiff’s agent as a proper person to serve the summons is not prohibited. While cogent reasons might be urged for extending the prohibition to the agent of the plaintiff by statute, such extension is not authorized to be made by the court.

That Hannay was adjudged by the justice a proper person to serve the summons may be fairly inferred from the fact of his designation. That he was of full age may be inferred from the fact of his acting as notary public. We are unable to find any sufficient ground for impeaching the judgment of the justice.

The judgment of the County Court, therefore, reversing the judgment of the Justice’s Court, should be reversed.

All concurred, except Herrick, J., dissenting.

Judgment of the County Court reversed, and that of the justice affirmed, with costs of this appeal and in the County Court.