Marshall Field & Co. v. Stern & Herff Corp.

Appellate Division of the Supreme Court of New York

Marshall Field & Co. v. Stern & Herff Corp.

15 A.D.2d 889, 225 N.Y.S.2d 491, 1962 N.Y. App. Div. LEXIS 11051

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

DecidedMarch 8, 1962

StatusPublished

This text of 15 A.D.2d 889 (Marshall Field & Co. v. Stern & Herff Corp.) 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

Marshall Field & Co. v. Stern & Herff Corp., 15 A.D.2d 889, 225 N.Y.S.2d 491, 1962 N.Y. App. Div. LEXIS 11051 (N.Y. Ct. App. 1962).

Pincite

Opinion

The action was commenced by the service of a summons on December 23, 1959. Defendant appeared and demanded service of the complaint on January 12, 1960. The complaint not having been served for 20 months thereafter, defendant, on October 2, 1961, made this motion to dismiss; and while the motion was pending, but before the return day, plaintiff served its complaint. Although there is an affidavit of merit made, not by the party, but by its attorney, which would sufficiently meet the requirement that merit must be shown to defeat a motion to dismiss for default in pleading, there is no [890]*890proof whatever of any fact or circumstance justifying the long failure to serve the pleading. This is left entirely unexplained in the record, and would require that the motion to dismiss be granted. (Wakschal v. Century Estates, 10 A D 2d 891; Gray v. Yale Transport Corp., 11 A D 2d 1072.) Concur — Rabin, J. P., Valente, Stevens, Eager and Bergan, JJ.

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The action was commenced by the service of a summons on December 23, 1959. Defendant appeared and demanded service of the complaint on January 12, 1960. The complaint not having been served for 20 months thereafter, defendant, on October 2, 1961, made this motion to dismiss; and while the motion was pending, but before the return day, plaintiff served its complaint. Although there is an affidavit of merit made, not by the party, but by its attorney, which would sufficiently meet the requirement that merit must be shown to defeat a motion to dismiss for default in pleading, there is no [890]*890proof whatever of any fact or circumstance justifying the long failure to serve the pleading. This is left entirely unexplained in the record, and would require that the motion to dismiss be granted. (Wakschal v. Century Estates, 10 A D 2d 891; Gray v. Yale Transport Corp., 11 A D 2d 1072.) Concur — Rabin, J. P., Valente, Stevens, Eager and Bergan, JJ.

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Bluebook (online)

15 A.D.2d 889, 225 N.Y.S.2d 491, 1962 N.Y. App. Div. LEXIS 11051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-field-co-v-stern-herff-corp-nyappdiv-1962.