People ex rel. Brennan v. Tilden — 121 A.D. 352

Majority

p. 352

The People of the State of New York ex rel. Michael E. Brennan, as Administrator, etc., of John Toth, Deceased, Relator, v. L. Royce Tilden, City Judge of the City of Hudson, New York, and of City Court of Said City, Respondent. Continental Casualty Company.

Third Department,

September 26, 1907.

Headnote

Judgment — City Court of Hudson — limitation on motion to vacate judgment — affidavit.

Moving affidavits on a motion to set aside a judgment against a corporation on >,the ground that the person served with, the summons was not the defendant’s ■ ■agent examined, and held, to be insufficient to warrant the vacating of the judgment.

Under section 137 of chapter 751 of the Laws of 1895 the City Court of Hudson can only vacate a judgment when a motion therefor is made within the time limited for an appeal, and when that time has expired the court has no power . to vacate a. judgment against a defendant who has been properly served and appeared in the action.

Cebtioeaei issued, out of the Supreme Court and. attested on the 1st day of. April, 1907, directed to L. Royce Tilden, city judge of ■the city of Hudson, N. Y., and of City Court -of said city, commanding him to certify and return to the office of the clerk of the county of Columbia all and singular'his proceedings had in vacating. and setting aside a certain judgment rendered by -the City .Court of Hudson in favor of Michael T. Brennan, as administrator, etc., plaintiff, against the Continental Casualty Company, defendant.

' The relator procured a judgment against the Continental Casualty Company in the City Court of Hudson upon the service of the summons upon one Martin L, Niver as the .agent and local treasurer of such company. Such judgment was docketed in the county clerk’s office of Columbia county, and a transcript filed in the county of New York. The City Court of Hudson is an inferior local court and it is provided in section 137 of the act .creating the court (Laws of 1895, chap. 751) that “the court shall have power upon five days’ notice or order to, show cause, on such terms as may be just, not exceeding the costs entered, in the judgment, to open a

p. 353

judgment against a plaintiff or defendant on default, and shall have power to stay proceedings pending the motion. This motion may be made within the time limited for an appeal from the judgment whether a transcript has been tiled in a county clerk’s office or not, and the court shall have power to stay proceedings, on any execution issued on said judgment, upon such terms as to requiring security, as may be just, and to direct the judgment to be canceled on the books of the county clerk!”

The order in question vacates the judgment and directs the docket thereof in the clerks’ offices of Columbia and New York counties to be canceled.

John L. Crandell, for the relator.

William W. Chace, for the Continental Casualty Company.

The motion to vacate the judgment was made solely on the ground that Niver was not the agent of the casualty company and, therefore, that it was not bound by the service of process on.him, but we think there was not sufficient proof before the court to justify that conclusion.

Upon, the motion the casualty company presented the affidavit of one Galloway who swore that he was an employee of the company in'charge of its claim department of the New York office, and that at the time when process was served upon Niver, the latter was not an agent of the casualty company. Nothing appears to show that Galloway had the sole power and authority from thé company to employ and discharge its agents in this State, nor that Niver was not employed by some one authorized so to do at the home office which was located at Chicago, Ill. Nor does it appear how he could have knowledge that Niver was not so employed. The facts that Galloway had charge of the claim department of the company in New York and had charge of this claim are not, standing' alone, sufficient to show that he had such knowledge.'

The relator filed affidavits upon the motion tending to show that Niver was the local agent or local treasurer of the casualty company

p. 354

•at the time of the service of the summons upon him and: that premiums were paid to him for the company for several months thereafter. There was, therefore, really no. evidence before the City Court that Niver. was not' the agent of the company at the time and the only competent evidence tended to' show that he .was. That ■ being the situation, the service of the summons on Niver as-the- ■ agent of the defendant- was a personal service on the casualty company. (Code Civ. Proc. §§ 2878, 2879, 2881.)

The return herein shows that Niver appeared for the company in the City Court and procured adjournments, Thesgummons having beén personally served on the company and it having appeared the time limited for an appeal from the judgment had. expired.; (Code Civ. Proc. § 3046.) Hence the time, limited for the making of this motion had also- expired. (Laws of 1895, chap. 751, § 137.) The motion should for that reason also have been denied.

. It - may be that as a matter of fact Niver was not the; agent of the company at the time, although the only , evidence before the City Court was to the contrary. In such case the judgment is void • and unenforcible..

The order should be reversed, with costs against the Continental-Casualty Company and without prejudice to the right of such com- . p'any to resist the. enforcement of the judgment if it should be so advised.

All-concurred.

Order reversed, with costs, against the Gontinentál Casualty Oóm-' pany and without prejudice to the right , of such company to resist' the enforcement of the judgment if it should be so advised.