People ex rel. Frost v. Marvin Safe Co.

New York Supreme Court

People ex rel. Frost v. Marvin Safe Co.

12 N.Y. Sup. Ct. 218

DecidedAugust 15, 1875

StatusPublished

This text of 12 N.Y. Sup. Ct. 218 (People ex rel. Frost v. Marvin Safe Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Frost v. Marvin Safe Co., 12 N.Y. Sup. Ct. 218 (N.Y. Super. Ct. 1875).

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Opinion

Davis, P. J.:

The only point made by the relator is, that the summons was served only two days before the day of its return. Section 2, chapter 828, of the Laws of 1868 (Session Laws, vol. 2, p. 1931) provides that, “ if the summons be returnable on the day on which it is issued, it shall be served at least two hours before the hour at which it is made returnable, and, if not returnable on the same day, it shall be served at least two days before the day on which it is made returnable.” The summons in this case was issued on the 21st day of November, 1874, and was returnable on the twenty-fifth day of that month. It, therefore, conformed to the requirements of the statute, inasmuch as it was returnable in “ not less than three, nor more than five days.” (§ 30, title 10, chap. 8, part 3, Revised Statutes, as amended by chap 460, of the Laws of 1851; § 1, chap. 828 of the Laws of 1868.)

The summons was served on the twenty-third day of the month, which was two days before the return day mentioned therein. There were two affidavits of the proof of service; one, of service by affixing the summons to a conspicuous part of the premises described therein, the tenant being absent, and there being no person on said premises at the time; the other, of service on the twenty-third November, by leaving a true copy of the summons at the usual place of residence of the relator, with a person of mature [220]*220age, wlio, at tbe time, of such service, was on the premises, and resided therein, the tenant being absent from his usual place of residence, and at the same time showing the original.

Both affidavits state the time of service to have been on the twenty-third November. We think this was clearly sufficient to satisfy the requirements of chapter 828 of the Laws of 1868, above cited. The proceedings must, therefore, be affirmed, with costs.

Daniels, J.-, concurred.

Proceedings affirmed.

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Davis, P. J.:

The only point made by the relator is, that the summons was served only two days before the day of its return. Section 2, chapter 828, of the Laws of 1868 (Session Laws, vol. 2, p. 1931) provides that, “ if the summons be returnable on the day on which it is issued, it shall be served at least two hours before the hour at which it is made returnable, and, if not returnable on the same day, it shall be served at least two days before the day on which it is made returnable.” The summons in this case was issued on the 21st day of November, 1874, and was returnable on the twenty-fifth day of that month. It, therefore, conformed to the requirements of the statute, inasmuch as it was returnable in “ not less than three, nor more than five days.” (§ 30, title 10, chap. 8, part 3, Revised Statutes, as amended by chap 460, of the Laws of 1851; § 1, chap. 828 of the Laws of 1868.)

The summons was served on the twenty-third day of the month, which was two days before the return day mentioned therein. There were two affidavits of the proof of service; one, of service by affixing the summons to a conspicuous part of the premises described therein, the tenant being absent, and there being no person on said premises at the time; the other, of service on the twenty-third November, by leaving a true copy of the summons at the usual place of residence of the relator, with a person of mature [220]*220age, wlio, at tbe time, of such service, was on the premises, and resided therein, the tenant being absent from his usual place of residence, and at the same time showing the original.

Both affidavits state the time of service to have been on the twenty-third November. We think this was clearly sufficient to satisfy the requirements of chapter 828 of the Laws of 1868, above cited. The proceedings must, therefore, be affirmed, with costs.

Daniels, J.-, concurred.

Proceedings affirmed.

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12 N.Y. Sup. Ct. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-frost-v-marvin-safe-co-nysupct-1875.