Thompson v. Rawlston

116 N.Y.S. 13

Opinion

PER CURIAM.

Service of the summons and complaint herein was attempted to be made by substituted service. The Municipal Court act provides that in such a case the order and the papers upon which the same was granted shall be filed six days before the return day of the summons. Section 34, Municipal Court Act (Laws 1902, p. 1501, c. 580); Dalton v. Mills (Sup.) 91 N. Y. Supp. 734; Stephens v. Molloy, 50 Misc. Rep. 518, 99 N. Y. Supp. 385. The return in this case fails to show this. The papers bear no indorsement showing that they were filed, but do show that the calendar fee was paid on November 7, 1908, which was three days before the return day of the summons. There is nothing, however, in the record, showing that they were not filed, and an amended return may show that they were filed within the proper time.

The record will therefore be returned to the lower court for amendment, if one can properly be made thereto.