McElfatrick v. Sire

Appellate Terms of the Supreme Court of New York

McElfatrick v. Sire

120 N.Y.S. 64

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 22, 1909

StatusPublished

This text of 120 N.Y.S. 64 (McElfatrick v. Sire) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElfatrick v. Sire, 120 N.Y.S. 64 (N.Y. Ct. App. 1909).

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Opinion

GIEGERICH, J.

The affidavits upon which the order for substituted service was granted do not show proper efforts to find the defendant, Henry B. Sire, in order to make personal service. The affidavit of the process server who undertook to serve the summons and complaint states that when he called at the residence of Henry B. Sire on June 12, 1909, and asked if Henry B. Sire lived there, he was told that he did not at present, but that he was expected to return' as soon as the alterations upon the property were completed. The process server was also told at the same time by the person in charge of the house that he would have to go to Albert Sire, at 99 Nassau street, for information as to the address of Henry B. Sire.

There is no evidence that application was ever made to Albert Sire, at 99 Nassau street or elsewhere, for such information. Before resorting to substituted service, the, source of information thus indicated to the process server should have been made use of, or, at least, an attempt to do so should have been made by the process server, or some one else acting on behalf of the plaintiff.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

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GIEGERICH, J.

The affidavits upon which the order for substituted service was granted do not show proper efforts to find the defendant, Henry B. Sire, in order to make personal service. The affidavit of the process server who undertook to serve the summons and complaint states that when he called at the residence of Henry B. Sire on June 12, 1909, and asked if Henry B. Sire lived there, he was told that he did not at present, but that he was expected to return' as soon as the alterations upon the property were completed. The process server was also told at the same time by the person in charge of the house that he would have to go to Albert Sire, at 99 Nassau street, for information as to the address of Henry B. Sire.

There is no evidence that application was ever made to Albert Sire, at 99 Nassau street or elsewhere, for such information. Before resorting to substituted service, the, source of information thus indicated to the process server should have been made use of, or, at least, an attempt to do so should have been made by the process server, or some one else acting on behalf of the plaintiff.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

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Bluebook (online)

120 N.Y.S. 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelfatrick-v-sire-nyappterm-1909.