Loucks v. Hallenbeck — 48 A.D. 426

Majority

p. 426

John A. Loucks, as Executor, etc., of George E. Loucks, Deceased, Appellant, v. William F. Hallenbeck and Franklin Hallenbeck, Respondents.

Headnote

Justice of the peace — designation of the plaintiff’s agent to serve the summons — inference that he is a proper person to do so-.— that he was of full age presumed from his acting as a notary.

Where the agent of the payee of a note, who has it in his possession, and is . vested with authority to do what is usual in • collecting it, commences, in the name of his principal, an action upon the note in a Justice’s Court, his request to be deputized to serve the summons will1 be deemed the request of the plaintiff.

The deputizing of the agent, pursuant to such request, is not invalid, although the statute prohibits the plaintiff himself from serving the summons.,

. That the justice adjudged the agent to be a proper person to serve the summons may be fairly inferred from the fact of- his designation, and that he was of full age may be inferred from the fact that the complaint was sworn to by the plaintiff before him as a notary public.

Herrick, J., dissented. •

Appeal by the plaintiff, John A. Loucks, as executor, etc., of George E. Loucks, deceased, from a judgment of the County Court of Albany county in- favor of the defendants, entered in the office of the clerk of the county of Albany on the 22d day of June, 1899,

p. 427

reversing a judgment in favor of the plaintiff, rendered by a justice ■of the peace.

On the 11th day of October, 1898, the justice of the peace, at the request of Orison L. Hannay, issued a summons directed to the defendants. The complaint was at that time filed with said justice, sworn to by the plaintiff before said Orison L. Hannay, a notary public. Upon the-summons and complaint, the justice made an indorsement deputizing O. L. Hannay to execute the within instrument. The summons and complaint were served by the said Hannay upon the defendants, and his return was duly made and filed with the justice. Upon the return day the defendants did not appear. Han-nay was sworn for the plaintiff, and swore in. substance that he was agent of the plaintiff and had possession of the note mentioned in the complaint; that he had talked with both defendants, and that both of them stated that the note was all right and promised to pay the same. In the return of the justice it was stated that the, said Han-nay was deputized to serve the summons at his own request. The justice gave to the plaintiff the judgment asked for, and upon appeal to the County Court the judgment was reversed.

J. H. Clute, for the appellant.

Martin A. Springsteed, for the respondents.

From the opinion handed down in the court below, we learn that this judgment was reversed upon the ground that no jurisdiction was obtained of the defendants by reason of the fact that Orison L. Hannay, who served the summons, was not deputized at the plaintiff’s request. With this conclusion of the learned county judge we .are unable to agree. Hannay was plaintiff’s agent, had possession ■of the note, demanded its payment and commenced the action which was afterwards prosecuted by the plaintiff’s direction. From his ■evidence we think there fairly appears an authority to do what was usual in making such collection, botli in the. institution of the action and in the making of the request for a deputization of a party other than the constable to serve the summons. Thus authorized, his request was the request of the plaintiff.

It is contended, however, that if he represented the plaintiff to

p. 428

/make the request, he must come within the inhibition of the statute which precludes the plaintiff himself from serving the summons. While the law authorizes a person to act through an agent and thus become bound, the appointment of the plaintiff’s agent as a proper person to serve the summons is not prohibited. While cogent reasons might be urged for extending the prohibition to the agent of the plaintiff by statute, such extension is not authorized to be made by the court.

That Hannay was adjudged by the justice a proper person to serve the summons may be fairly inferred from the fact of his designation. That he was of full age may be inferred from the fact of his acting as notary public. We are unable to find any sufficient ground for impeaching the judgment of the justice.

The judgment of the County Court, therefore, reversing the judgment of the Justice’s Court, should be reversed.

All concurred, except Herrick, J., dissenting.

Judgment of the County Court reversed, and that of the justice affirmed, with costs of this appeal and in the County Court.