Smith v. Gourand — 27 N.Y.S. 717

Majority

p. 717

SMITH v. GOURAND.

(Supreme Court, General Term, First Department.

February 16, 1894.)

Headnote

Practice—Service of Complaint after Time has Expired.

After the time for serving the complaint has expired, plaintiff’s remedy is by motion to open the default, and not by a motion to compel defendant to accept service; but an order requiring defendant to accept service of the complaint in such case will not be disturbed, where plaintiff’s notice of motion asks for such other relief as the court might grant, and sufficient facts appear to warrant the opening of the default.

Appeal from special term, New York county.

Action by Charles F. Smith against Claude L. Gourand. From an order requiring defendant’s attorney to accept service of the complaint, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Stephen C. Baldwin, for appellant.

Edwin R. Leavitt, for respondent.

The complaint was served after the time for such service had expired, and the plaintiff therefore, as a matter of right, could not have insisted upon the defendant accepting the same, and the form of his motion, instead of being to compel defendant to accept, should have been to open the default. In his notice of motion, however, he asked for such other relief as the court might grant; and, sufficient facts appearing to warrant the opening of the default, and the granting of the motion for leave to serve the complaint, it is to be assumed that this was the relief which the court intended to grant. We think, therefore, while the form of the notice of motion, and the order entered upon granting the same, may not be strictly correct, because requiring the defendant to accept the complaint, instead of .opening the default, and granting permission to serve the complaint, that the proper disposition to be made of the appeal would be to affirm the order, without costs.