Gray v. Smith — 10 N.Y. St. Rep. 866

Majority

p. 866

SECOND DEPARTMENT, GENERAL TERM.

Filed July 1, 1887.

WILLIAM GRAY, Resp’t, v. CORNELIA SMITH, Impleaded with others, App’lts.

Headnote

Practice—Service of papers by mail.

An amended demurrer was attempted to be served by defendants attorney from Yonkers, N. Y., while the attorneys address was “Stewart building," New York city. Seld, that it was irregularly and improperly served.

Garret Z. tikider, for resp’t; Allen Lee Smidt, for app’lts.

—This action was commenced to foreclose a mortgage upon real property, and there was a demurrer to the complaint served for one of the defendants.

The issue of law so raised was tried and decided adversely to the defendant.

The Stewart building, in New Yoik city, was the office and post-office address of the defendant’s attorney.

Upon the same day of the decision of the issue of law, the defendant’s attorney mailed an amended demurrer to the cc mplaint, at Yonkers, to the plaintiff’s attorney, which was struck out upon motion, and the defendant has appealed from the order.

The reasons for striking out the demurrer are very obvious. It was irregularly and improperly served; it was plainly frivolous and an effort to create a new issue precisely like the issue of . law that had been tried and decided in. favor of the plaintiff.

The order should be affirmed, with ten dollars costs and disbursements, to be included in the plaintiff’s bill of costs in the action.

Pratt, J., concurs; Barnard, P. J., not sitting.