Olson v. McConihe

Headnote

Process—Service—Setting Aside.

Where a process server gained access forcibly to the room where defendant was, after having, obtained an entrance into the house under pretext that he wanted to see a servant named, the service was illegal, and will be set aside.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, § 51.]

Action by Emma Olson against Phebe Warren McConihe. Mo-, tion by defendant to set aside service of summons as obtained by' trickery.

Granted.

The affidavits used on the motion show that on the evening of March 11, 1907, a female process server called at the servants’ entrance of defendant’s residence on East Fifty-First street, borough of Manhattan, rang the bell, and the defendant’s cook, on opening the door, was told by this process server that she would like to see “Kate,” meaning one of the upstairs maids. The cook invited this stranger into the house, and asked her to sit down in the kitchen, and she would send for her. While the cook was telephoning upstairs for Kate, the process server ran up the back stairs apd rushed through the pantry, brushing aside the butler, and ran into the defendant’s dining room, where the defendant and her family were dining, and threw upon the dining room table a summons and complaint inclosed in an envelope. The plaintiff was formerly a cook in the defendant’s employ, and, having fallen downstairs in defendant’s house, brought this action for personal injuries, and was familiar with the names of defendant’s servants and her residence.