Fitzgerald v. Dakin — 101 A.D. 261

Majority

p. 261

Richard E. Fitzgerald, Appellant, v. Edward M. Dakin, Respondent.

Headnote

Service of an answer and demand for a bill of particulars — dropping them loosely without wra/pper or address in the office letter box of the plaintiff’s attorney is insufficient.

The attempted service of an answer and a demand for a bill of particulars upon the plaintiff’s attorney, by depositing them in his office letter box, without inclosing them in an envelope or sealed wrapper, and without addressing them to any one, is not a valid service, and the plaintiff's attorney cannot, by order of the court, be required to accept it as valid.

Appeal by the plaintiff, Richard E. Fitzgerald, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of 'St. Lawrence on the 4th day of April, 1904, directing the plaintiff to accept and retain the answer and the demand for a bill of particulars served upon him by the defendant. ,

The plaintiff, having served the summons and complaint in this action to recover for legal services rendered, the time to answer would expire on the 28th day of March, 1904. Upon that day at about eight o’clock in the evening, the defendant served a copy of his answer and also a demand for a bill of particulars in' the action upon the plaintiff’s attorney, by depositing them in the office letter box of such attorney. Neither of said papers was inclosed in an envelope or sealed wrapper nor addressed to anybody. Each paper was simply deposited loosely in such box. The next day, and within twenty-four hours, the plaintiff’s attorney returned to the defendant’s attorney each of such papers, with the indorsement thereon that they were returned for the reason that the manner of the

p. 262

attempted service,was unauthorized and' irregular and constituted no service. The defendant’s attorney thereupon, on, March thirty-first, procured from the special surrogate of St.. Lawrence county an order that the plaintiff show cause at a Special Term of -the Supreme Court, held at. the chambers of a justice of this court, on the 2d day of April, 1904, why the plaintiff should-not accept said answer and demand, and staying all proceedings on "the part of. the plaintiff until the decision of that motion. At such time and place the parties appeared and an order was thereupon made requiring-the plaintiff’s said attorney to accept and retain the said answer and .the said demand, upon service upon him of a certified-copy Of said order.' From such last named order this appeal is taken.

Richard E. Fitzgerald, for the appellant.

George Morton, for the respondent.

, The only servicie that is claimed to have been made of the answer and notice in question is that it was dropped loosely, and without being inclosed in any wrapper at ah, in the office letter box of the plaintiff’s attorney, and without being directed to such attorney., Very clearly, such mode'of service is not authorized. It does not at all meet the requirements of subdivision 3 of section 797 of the Code of Civil Procedure, nor does it satisfy any other mode of servicev tolerated by said Code. ' The plaintiff’s attorney was, therefore, regular- in returning the papers in the way he did return them, and I know of no aúthority for the court’s, requiring him to aqcept such service. There is no effort .made in .this, matter.to excuse default in the service of the answer, nor does the order appealed "from purport to be an. order excusing the default and permitting the defendant to'serve another answer. It squarely requires the plaintiff to accept, as good service, a service that was clearly unauthorized by any rule of practice. This may not be done, and, therefore, the order appealed from should be reversed, with ten dollars, costs and disbursements.-

All concurred.,

Order reversed, with ten dollars costs and disbursements.