Graham v. Powers — 22 N.Y. St. Rep. 95

Majority

p. 95

James J. Graham, Resp’t, v. William J. Powers et al., Trustees, etc., of Town of Castleton, etc., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Practice—Judgment—Proof oe service oe order.

An affidavit of plaintiff’s attorney that an order overruling a demurrer, with leave to answer within twenty days, had been served upon the defendant’s attorney, but not containing the name of the person upon whom the service was made, is not sufficient proof of the service of the order to authorize entry of judgment against the defendant.

2. Same—Motion to set aside judgment.

The judgment should be set aside on a motion supported by an affidavit" of defendant’s attorney, stating that he was the defendant’s attorney, that . no order overruling the demurrer had ever been served upon him, and that he had no knowledge of the same until he consulted the records on-, file in court, no counter affidavits being presented.

Appeal from order of special term denying a motion to set aside as irregular a final judgment entered on decision, overruling a demurrer.

Edward C. Delavan, for app’lts; Thomas W. Fitzgerald, for resp’t.

—This is an from an order a motion to set aside the judgment in this action for irregularity.

The defendants demurred to the complaint of the plaintiff and the demurrer was overruled, with leave to answer.

p. 96

Upon that decision an order was entered May 2, 1887, by the plaintiff’s attorney overruling the demurrer, with leave to the defendants to answer in twenty days after service of notice of entry of such order on payment of costs.

Thus the case remained until Api’il 25, 1888, when the ^attorney for the plaintiff made an affidavit that more than twenty days ago the attorney for the defendant was served with a copy of the order overruling the demurrer herein, rand that no answer had ever been received in the action, and thereupon on the same day a judgment was entered against the defendants in the action for the full amount of the plaintiff’s claim.

Then the attorney for the defendant, Mr. Delavan, wrote . the plaintiff's attorney to express his surprise, and in .reply received an answer in which he was told he never was the attorney of record, and, therefore, the plaintiff’s attorney was not bound to serve any papers upon him.

The attorney for the defendants then made the affidavit upon which this motion was founded, in which he stated that he was the attorney for the defendants, that no order -overruling the demurrer had ever been served upon him, and he had no knowledge of the same until he consulted the records in Richmond county in September, 1888.

Upon that affidavit, and the pleadings, and the correspondence between the attorneys, the motion was made which resulted in the order appealed from. No affidavit was made or used in opposition to the motion, and so it .stood uncontradicted that Mr. Delavan was the attorney for the defendants, and had never received notice of the entry ■of the order overruling- the demurrer.

These conceded facts demonstrated the irregularity of the ■final judgment, and showed that the defendants had been afforded no opportunity to answer the complaint in accordance with the privilege granted by the order overruling the ■demurrer.

The affidavit itself upon which the- final judgment was ■entered, was not proof of service of a copy of the order overruling the demurrer. It contained the name of no person upon whom the service was made, but stated merely that a copy had been served upon the defendant’s attorney. That affidavit may have been based upon the claim made in one of the letters of the attorney for the plaintiff in which he stated to Mr. Delavan that he was not the attorney for the defendants. We now know that such claim was baseless. Mr. Delavan has been from the first the attorney for the defendants, and the record discloses no other.

The order appealed from should be reversed, with ten -dollars costs and disbursements, and the motion granted with ten dollars costs.

All concur.