Milligan v. Fles — 21 Abb. N. Cas. 93

Majority

p. 93

MILLIGAN v. FLES.

N. Y. City Court, Special Term;

May, 1888.

Headnote

Pummons; JP. Y. Oity Court. ] A plaintiff not residing in 'the city of New York is entitled, under Code Civ. Pro. § 3105,* in the N. Y City Court to short summons, notwithstanding he has a place of business in that city. Having a place of business in the city does not constitute him a resident within the statute.

Motion to vacate an order directing that a short summons issue.

John C. Milligan sued Amelia Fies upon a promissory note made by her to the order of The Lalance and Grosjean Mf’g Co., who transferred the note to the plaintiff Milligan.

The pliantiff on the ground of his non-residence, obtained an order pursuant to § 3160 of the Code of Civil

* Code Civ. Pro. § 3165, is as follows: The summons, in an action brought in the court, must state that the time within which the defendant must serve a copy of his answer, is six days after the service .thereof, exclusive of the day of service; except in one of the following cases:

1. A justice of the court may, upon satisfactory proof, by affidavit, that either the plaintiff or the defendant resides without the city of New York, or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside •without that city, direct, by an order, that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, exclusive of the day of service, whereupon the summons must correspond to the order. The order must be endorsed upon or annexed to the summons, and a copy thereof must be delivered with a copy of the summons. The justice may, in 'his discretion, as a condition of granting the order, require the plaintiff to give an undertaking with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in ;he action, not exceeding a sum specified in the undertaking, which must be at least two hundred dollars.

p. 94

Procedure, directing that the defendant answer within two-days after the service of the summons upon him.

The defendant’s affidavit used upon the motion showed, that the plaintiff had a stated place of business and employment in the City of New York and was actually carrying on business there; and claimed, that this fact constituted him. a resident for the purpose of the action; and that the-plaintiff was not entitled to the order.

Jacob Levy, for the motion.

Masten & Nichols, opposed.

Where either the plaintiff or defendant does not reside within the City of New York a short summons may be ordered (Code Civ. Pro. 3165). The fact that either or both have an office or place of business within the-county, does not affect this provision of the Code. A place of business within the county exempts a plaintiff from the-the necessity of giving security for costs as a non-resident, under sections 3968 and 3969 of the Code (§ 3160), and exempts a defendant from being proceeded against by-attachment as a non resident of the county (Code, § 3969,. subd. 3), but the exemption does not extend to or affect the short summons authorized by section 3165 (supra).

The motion by the defendant to vacate the order directing a short summons to issue will therefore be denied, with $10 costs to abide the event.

Ordered accordingly.