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Mason v. Libbey

1 Abb. N. Cas. 354 Court N. Y. Supreme Court, Second Department; Special Term, English

Delivered by Barnard, J.

Contents

Majority

p. 354
MASON v. LIBBEY.
N. Y. Supreme Court, Second Department; Special Term,
1876.

Headnote

Service oe Order for Examination.—Unlawful Entrance.
A service of an order or process in a civil action, made by a private person by wrongfully entering the house of the person served, is illegal, and will be set aside .[1]
The plaintiff sued her mother, and having obtained an order and summons for the examination of the mother before trial, the plaintiff, being possessed of a key of the mother’s house, went there, let herself in, •and thus effected service of the order and summons to attend and be examined.
Chauncey B. Ripley, and A. B. Tappen, for defendant, moved to set aside the service on the ground
p. 355
that it was unlawfully made, citing:
Carpenter v. Spooner, 2 Sandf. 717 ; followed in Goupil v. Simon-son, 3 Abb. Pr. 474 ; Burdett v. Abbott, 14 East, 1, 79, &c.; People v. Hubbard, 24 Wend. 369 ; Curtis v. Hubbard, 4 Hill, 437 ; aff’g 1 Id. 336; 3 Blackst. Com. 212; 2 Alb. Law Jour. 303, and cas. cit.; 3 Id. 465; Broom’s L. Max. 707, 711.
Miller & Van Volkenburgh, opposed.

J.—The plaintiff was not justified in entering her mother’s house by unlocking the door without her mother’s permission, to make the service in question. As against the service of civil process the law throws around the defendant the safeguard of protection to herself and her family. I cannot accept the plaintiff’s statement that she carried the key to defendant’s house by her permission. There had been long subsisting bitter and protracted litigation between the parties. If the plaintiff did once have the key by defendant’s consent, the plaintiff well knew that the right to use it had been withdrawn by the changed relations of the parties, if not by actual words.. This service must be set aside with costs (Campbell v. Spencer, 1 How. Pr. 199 ; Livingston v. McIntyre, Id. 253 ).

Motion granted.

No appeal was taken.

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