Ahner v. New York, New Haven & Hartford Railroad

Majority

p. 365

Ahner v. New York, N. H. & H. R. Co.

(City Court of New York, General Term.

May 8, 1891.)

Headnote

Writs—Defective Service of Process.

In an action against a railroad company to recover the penalty prescribed by Laws N. Y. 1857, c. 185, for extortion, an objection that the summons was not served by the sheriff, as required by Code Civil Proc. N. Y. § 1895, in actions for penalties, can be taken only by motion before answer.

Appeal from special term.

Action by Louis Ahner against the New York, New Haven & Hartford Railroad Company. Defendant appeals.

Argued before Ehrlich, C. J., and Fitzsimons and McCarthy, JJ.

Page & Taft, for appellant. Henry Wehle, for respondent.

This action is brought to recover a penalty amounting to 450.14 under the statute entitled “ An act to prevent extortion by railroad companies, ” passed March 27,1857, (chapter 185,) because of alleged violation of said statute by defendant to plaintiff’s injury in said amount. Section 1895 ■of the Code of Civil Procedure provides that the summons in actions of this character shall be served (in this instance) by the sheriff, who shall file proof •of service thereof with the clerk of this court. The answer of the defendant, among other things, alleges “that this action cannot be maintained, for the reason that the" summons was not served by the person designated in said section 1895, and without prejudice, by appearing to defend, reserves said objection, and with right to insist upon the same whenever deemed proper.” If the summons was served by a person not designated by said section of the ■Code, then said service was merely irregular, and objection should have been by motion before service of the answer. It is a trivial objection, at most, and such objections are not encouraged, and ought always to be. disregarded and set aside, unless taken in the proper time, viz., by motion and before answer. This court lias jurisdiction of the parties, the subject-matter of the action, and the complaint appears to state a good cause of action. The order-appealed from is a proper one, and is affirmed, with eos.ts. Ail concur.