Woodruff v. Austin

15 Misc. 450, 37 N.Y.S. 22, 72 N.Y. St. Rep. 174

• Court: City of New York Municipal Court
• Decided: January 15, 1896
• Status: Published

Opinion

Botty, J.

In determining the questions arising on this appeal we must be guided solely by "the printed • record as made up for that purpose.

The contention made by the respondent upon the argument of this appeal, that the defendant appeared generally in this action since the taking of the appeal, cannot be considered here.

To bring this question before the court the respondent should have moved for a dismissal of the appeal on notice to the appellant.

The record shows that the plaintiff, a practicing lawyer, at the time of the commencement of this action resided in the city of Rahway, New Jersey, and had an office for the regular transaction of his business in person within the city of New York.

The fact that plaintiff had such an office within the city of New York was sufficient to give the court jurisdiction, as under the provision of section 3160 of the Code of Civil Procedure he is deemed a resident of that city.

It also appears from the record that the defendant is a resident of Boston, Mass.

He came to New York on the morning of November 7, 1895, for the purpose of attending as a witness in behalf of the plaintiff in the trial of the action of Chrimes v. Squier pending in the New York Supreme Court.

On that day said cause appeared on the day calendar and was marked ready, but at the request of the attorney for the defendant the same was passed for the day.

The case did not again appear on the day calendar until November eightéentb, although the same was marked ready and was liable to be called up at any time.

On the morning of November fourteenth the witness was informed by counsel for the plaintiff that his attendance at court was not required on that day and that he might go-back to Boston and return on November eighteenth.

The witness, however, remained in the city, and on the afternoon of November fourteenth, between the hours of four and five o’clock, he called at the office of Mr. Woodruff, the plaintiff in this action, and was thereafter and on the same day served with the summons herein, the service of which he now seeks to set aside.

It seems that the witness’ delay in returning home on the day in question was unnecessarily prolonged, and that at or about the time of the service of the process he was attending to business of a private nature.

By reason of the premises he forfeited his privilege of exemption from service of process.

The motion to set aside the service of the summons was, therefore, properly denied.

Order of November 27,1895, and the order of resettlement of November 29, 1895, appealed from, affirmed, with costs.

Fetzsimons, J., concurs.

Orders affirmed, with costs.