Lyster v. Pearson

City of New York Municipal Court

Lyster v. Pearson

6 Misc. 618, 26 N.Y.S. 77, 55 N.Y. St. Rep. 778

DecidedNovember 15, 1893

StatusPublished

This text of 6 Misc. 618 (Lyster v. Pearson) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyster v. Pearson, 6 Misc. 618, 26 N.Y.S. 77, 55 N.Y. St. Rep. 778 (N.Y. Super. Ct. 1893).

Pincite

Opinion

Newburger, J.

This is an appeal from an order opening a default and vacating the judgment entered thereon on condition that defendant pay plaintiff’s attorney fifteen dollars costs and serve his answer within six days.

It is contended on the part of the appellant that the judgment should have been absolutely set aside, without any conditions, for the reason that there was no personal service on the defendant. It aj>pears that service of the summons herein was made on one Mortimer, a person who had been designated by defendant for that purpose. It is claimed, however, by defendant that said Mortimer was not to use such designation, nor file the same with the county clerk, unless the defendant was traveling out of the United States. The designation, however1, is general, and it authorizes Mortimer for one year from its date to receive service of summons or process in any action or proceeding in any court, and the service having been made under such designation, the judgment was properly entered herein. It was, therefore, a judgment by default, and the justice at Special Term in opening such default had a right to impose the conditions he did.

The order appealed from must be affirmed, with costs.

McCarthy, J., concurs.

Order affirmed, with costs.

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Newburger, J.

This is an appeal from an order opening a default and vacating the judgment entered thereon on condition that defendant pay plaintiff’s attorney fifteen dollars costs and serve his answer within six days.

It is contended on the part of the appellant that the judgment should have been absolutely set aside, without any conditions, for the reason that there was no personal service on the defendant. It aj>pears that service of the summons herein was made on one Mortimer, a person who had been designated by defendant for that purpose. It is claimed, however, by defendant that said Mortimer was not to use such designation, nor file the same with the county clerk, unless the defendant was traveling out of the United States. The designation, however1, is general, and it authorizes Mortimer for one year from its date to receive service of summons or process in any action or proceeding in any court, and the service having been made under such designation, the judgment was properly entered herein. It was, therefore, a judgment by default, and the justice at Special Term in opening such default had a right to impose the conditions he did.

The order appealed from must be affirmed, with costs.

McCarthy, J., concurs.

Order affirmed, with costs.

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Bluebook (online)

6 Misc. 618, 26 N.Y.S. 77, 55 N.Y. St. Rep. 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyster-v-pearson-nynyccityct-1893.