National Manufacturing Corp. v. Buffalo Metal Container Corp.

204 Misc. 269, 126 N.Y.S.2d 755, 1953 N.Y. Misc. LEXIS 2489

• Court: New York Supreme Court
• Decided: May 26, 1953
• Status: Published

Opinion

Hagerty, J.

Service of the summons herein on the Secretary of State as designated agent for such purpose constituted proper personal service on the defendant corporation, under the provisions of section 228 of the Civil Practice Act. The defendant has submitted no decision or statute which directly or impliedly would justify a holding that the service was null or void merely because the Secretary of State erred in mailing the copy of the summons to an incorrect address, resulting in the defendant corporation’s failure to receive the same.

Inasmuch as it appears conclusively, however, that the Secretary of State did not mail the summons to the defendant at the proper address, the court would be justified in vacating the judgment had the defendant submitted on this motion a copy of a proposed answer and an affidavit of a meritorious defense. Whether this form of service be considered “ personal ” as set forth in the statute, or “ constructive ”, as it actually is, the requirement of a copy of a proposed answer and an affidavit of a meritorious defense should be fulfilled by the movant. (Carpenter v. Weatherwax, 277 App. Div. 264.)

The motion to set aside the service of the summons and complaint and to dismiss the action is denied.

The motion to vacate and set aside the judgment is denied, with leave to renew upon proper motion papers, including a proper and adequate affidavit of meritorious defense and a proposed answer, to be served on the attorneys for the plaintiff within three days after service upon the attorneys for the defendants of a copy of this order and notice of entry thereof, and in such an event the stay herein is continued until the hearing and determination of such renewed motion.

Submit order.