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Van Zandt v. Van Zandt

23 Abb. N. Cas. 328 Court N. Y. Supreme Court, First District, Chambers; English

Delivered by O’Brien, J.

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p. 328
VAN ZANDT v. VAN ZANDT.
N. Y. Supreme Court, First District, Chambers;
July, 1889.

Headnote

Service of complaint where summons was served by publication.'] A defendant served by publication may, before the service is completed, appear and demand a copy of the complaint if one has not been delivered to him personally, notwithstanding one was served on him by mail; and his time to answer runs from the time of the service of the copy complaint in compliance with such demand, unless otherwise fixed by stipulation.
Motion to compel acceptance of pleading.
William T. Van Zandt, individually and as executor, etc., of Thomas Van Zandt, deceased, brought this action against Marie A. Van Zandt, Leopold Van Zandt and Isabel Sanford, to compel the defendants to interplead as to certain real property and the income thereof, of the estate of Thomas Van Zandt, deceased.
The summons was served upon Leopold Van Zandt and Isabel Sanford by publication, and a copy of the summons and complaint was mailed to each of them; but no personal ¡service of the summons was made.
p. 329
Thereupon the defendants so served appeared by attorney and demanded a copy of the complaint. Plaintiff’s •attorney admitted service of the appearance, and served a -copy of the complaint pursuant to the demand, at which time, as appears from the affidavits of both the plaintiff and defendants’ attorneys, it was agreed between the respective ¡attorneys that the defendants had twenty days from the service of the copy of the complaint pursuant to the demand, within which to answer.
Another attorney was subsequently substituted for the ¡plaintiff’s attorney.
The defendants interposed demurrers to the complaint within the twenty days as agreed, and the substituted attorney refused to accept them, on the ground that the defend■ants’ time to plead had expired.
Abram Jacobson, for the plaintiff.
A. C. Fransioli, for the defendants.

Section 479 of the Code provides, that if ••a copy of the complaint is not delivered to a defendant at the time of the delivery of a copy of the summons to him, ■either within or without the State, his attorney may at any time within twenty days after the service of the summons is -complete, serve upon the plaintiff’s attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The case of Skinner v. Skinner,[1] decided by Mr. Justice Andrews, holds that where the summons and a copy of the complaint were served without the State upon the defendant personally, the defendant was not-entitled to demand service of a copy of the complaint. In the case of Mackay v. Laidlaw ( 13 How. Pr. 129 ), decided under section 130 of the old Oode, it was held under the language of that section, that the only case in which the Oode expressly authorizes a defendant to demand

* See preceding case, p. 327.

p. 330
a copy of the complaint, and gives him twenty days thereafter to answer it, is where there has been personal service of the summons, but no copy of the complaint has been served with it. This old section 130, was amended in .1877, and subsequently by the adoption of the new Code. It seems tome that this case of Mackay v. Laidlaw is inconsistent with the language of the present section 479. The view of Mr. Justice Ahdbews is undoubtedly correct, that where a copy of the complaint is served upon the defendant, within or-without the State, he is not entitled upon appearing to demand service of another copy.

Where, however, the summons is served by publication,, and a copy of the complaint is-not served, within or without the State, and the defendant appears before the service is-completed, he is entitled to demand and receive a copy of the complaint. Otherwise, no provision is made for a person, not personally served who appears and demands a copy of the complaint by which he can obtain a copy of the same.

However, so far as this motion is concerned, the affidavit of the former attorney of the plaintiff shows that the notice-of appearance served on behalf of the defendant, with a written demand therein incorporated, requiring service of a copy of the complaint, were accepted by him. The defendant’s time to plead was thus fixed by stipulation between the attorneys, and I do not see how the present attorney can repudiate this action. It was competent for the attorneys to-stipulate, and having stipulated, it necessarily superseded, so far as inconsistent therewith, the service of the summons- and complaint by publication. As a question of practice, therefore, I'am inclined to accept the defendant’s view, but for the purposes of this motion the stipulation made between the attorneys is conclusive upon the plaintiff, and-the-return of the demurrer upon the ground that it was not-served in time cannot be upheld.

The motion, therefore, to compel plaintiff to accept the pleading served and returned, is granted. Ho costs.

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