Lederer Amusement Co. v. Pollard — 71 A.D. 35

Majority

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Lederer Amusement Company, Respondent, v. Charles Albert Pollard, Defendant. Henry John Pollard, Appellant.

Headnote

Mistake — service of a summons on a person not named as defendant therein — remedy of the person so served — when a motion to set aside the service must he denied.

A person who claims that a summons, in which his brother is named as the defendant, was served upon him by mistake has two available remedies; one to move to set aside the service and the other to serve a notice of appearance indicating that the summons was served on the wrong individual, and if no attention is paid to this to formally answer and bring the case to trial and procure the complaint to be dismissed, with costs.

If he resorts to the first-mentioned remedy and the plaintiff opposes the motion, claiming that the person served was the defendant desired, it is the duty of the court to deny the motion.

Appeal by Henry John Pollard, from an order of the Supreme Court, made at New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1902, denying his motion to set aside the service of the summons in the action upon him.

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Jacob Fromme, for the appellant.

Franklin Bien, for the respondent.

Henry John Pollard was served with a summons in which the name of Charles Albert Pollard was inserted as. the defendant, which, as the affidavit of Henry shows, is the name of his brother. Henry further states in his affidavit that he never had any business or financial transactions with the plaintiff, and is not aware of any claim that the latter has against him. He thereupon moved to set aside the summons on the ground that he was not the defendant and that the summons was so served upon him by mistake.

The motion was opposed by the plaintiff, and, although no affidavit was submitted by it to contradict that which had been presented, this opposition of the motion shows' that the plaintiff’s intention was to retain Henry, who had been served in the action, as a party defendant.

Where there has been service of summons two remedies are open to the person claiming to have been wrongly served. One, which is the .most complete and direct, is to appear in a form of appearance indicating that the summons has been served on the wrong individual; and, if no attention is paid to this, after the complaint is received, to formally answer and notice the case for trial, and thus, if the plaintiff refuses to remedy the mistake by withdrawing the summons or consenting that service of it be set aside, the action may be brought to trial and dismissed with a bill of costs which would be some punishment inflicted'upon the plaintiff for insisting upon retaining the wrong defendant. There is also authority for the practice which was here followed, of moving to set aside the service on the ground that a mistake has been made. Where this is resorted to the person runs the risk of having the plaintiff insist — as it appears was done here — that the service was upon the right individual, although the name was incorrectly stated in the summons. In other words, if, upon a motion to set aside the service on the ground that a mistake has been made, the plaintiff by opposing it claims that the person served was the one desired in the action, then, whether the service was under the wrong name or

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not, it is the duty of the court as was here done, to deny the motion.

The order appealed from must accordingly be affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.