People ex rel. Brennan v. Tilden

Appellate Division of the Supreme Court of New York

People ex rel. Brennan v. Tilden

121 A.D. 352, 106 N.Y.S. 247, 1907 N.Y. App. Div. LEXIS 1769

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

DecidedSeptember 26, 1907

StatusPublished

This text of 121 A.D. 352 (People ex rel. Brennan v. Tilden) 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

People ex rel. Brennan v. Tilden, 121 A.D. 352, 106 N.Y.S. 247, 1907 N.Y. App. Div. LEXIS 1769 (N.Y. Ct. App. 1907).

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Opinion

Chester, J.:

The motion to vacate the judgment was made solely on the ground that Niver was not the agent of the casualty company and, therefore, that it was not bound by the service of process on.him, but we think there was not sufficient proof before the court to justify that conclusion.

Upon, the motion the casualty company presented the affidavit of one Galloway who swore that he was an employee of the company in'charge of its claim department of the New York office, and that at the time when process was served upon Niver, the latter was not an agent of the casualty company. Nothing appears to show that Galloway had the sole power and authority from thé company to employ and discharge its agents in this State, nor that Niver was not employed by some one authorized so to do at the home office which was located at Chicago, Ill. Nor does it appear how he could have knowledge that Niver was not so employed. The facts that Galloway had charge of the claim department of the company in New York and had charge of this claim are not, standing' alone, sufficient to show that he had such knowledge.'

The relator filed affidavits upon the motion tending to show that Niver was the local agent or local treasurer of the casualty company [354]*354•at the time of the service of the summons upon him and: that premiums were paid to him for the company for several months thereafter. There was, therefore, really no. evidence before the City Court that Niver. was not' the agent of the company at the time and the only competent evidence tended to' show that he .was. That ■ being the situation, the service of the summons on Niver as-the- ■ agent of the defendant- was a personal service on the casualty company. (Code Civ. Proc. §§ 2878, 2879, 2881.)

The return herein shows that Niver appeared for the company in the City Court and procured adjournments, Thesgummons having beén personally served on the company and it having appeared the time limited for an appeal from the judgment had. expired.; (Code Civ. Proc. § 3046.) Hence the time, limited for the making of this motion had also- expired. (Laws of 1895, chap. 751, § 137.) The motion should for that reason also have been denied.

. It - may be that as a matter of fact Niver was not the; agent of the company at the time, although the only , evidence before the City Court was to the contrary. In such case the judgment is void • and unenforcible..

The order should be reversed, with costs against the Continental-Casualty Company and without prejudice to the right of such com- . p'any to resist the. enforcement of the judgment if it should be so advised.

All-concurred.

Order reversed, with costs, against the Gontinentál Casualty Oóm-' pany and without prejudice to the right , of such company to resist' the enforcement of the judgment if it should be so advised.

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Chester, J.:

The motion to vacate the judgment was made solely on the ground that Niver was not the agent of the casualty company and, therefore, that it was not bound by the service of process on.him, but we think there was not sufficient proof before the court to justify that conclusion.

Upon, the motion the casualty company presented the affidavit of one Galloway who swore that he was an employee of the company in'charge of its claim department of the New York office, and that at the time when process was served upon Niver, the latter was not an agent of the casualty company. Nothing appears to show that Galloway had the sole power and authority from thé company to employ and discharge its agents in this State, nor that Niver was not employed by some one authorized so to do at the home office which was located at Chicago, Ill. Nor does it appear how he could have knowledge that Niver was not so employed. The facts that Galloway had charge of the claim department of the company in New York and had charge of this claim are not, standing' alone, sufficient to show that he had such knowledge.'

The relator filed affidavits upon the motion tending to show that Niver was the local agent or local treasurer of the casualty company [354]*354•at the time of the service of the summons upon him and: that premiums were paid to him for the company for several months thereafter. There was, therefore, really no. evidence before the City Court that Niver. was not' the agent of the company at the time and the only competent evidence tended to' show that he .was. That ■ being the situation, the service of the summons on Niver as-the- ■ agent of the defendant- was a personal service on the casualty company. (Code Civ. Proc. §§ 2878, 2879, 2881.)

The return herein shows that Niver appeared for the company in the City Court and procured adjournments, Thesgummons having beén personally served on the company and it having appeared the time limited for an appeal from the judgment had. expired.; (Code Civ. Proc. § 3046.) Hence the time, limited for the making of this motion had also- expired. (Laws of 1895, chap. 751, § 137.) The motion should for that reason also have been denied.

. It - may be that as a matter of fact Niver was not the; agent of the company at the time, although the only , evidence before the City Court was to the contrary. In such case the judgment is void • and unenforcible..

The order should be reversed, with costs against the Continental-Casualty Company and without prejudice to the right of such com- . p'any to resist the. enforcement of the judgment if it should be so advised.

All-concurred.

Order reversed, with costs, against the Gontinentál Casualty Oóm-' pany and without prejudice to the right , of such company to resist' the enforcement of the judgment if it should be so advised.

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Bluebook (online)

121 A.D. 352, 106 N.Y.S. 247, 1907 N.Y. App. Div. LEXIS 1769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-brennan-v-tilden-nyappdiv-1907.