Lederer v. Adams — 33 N.Y. St. Rep. 799

Majority

p. 799

Samuel M. Lederer, Appl’t, v Thomas D. Adams, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Service—Motion to set aside—Loches.

Defendant, who was exempt as a witness from service of process, was served May 16, and an order to show cause why it should not be set aside was granted June 5. I-Ield, that defendant was not guilty of loches in making his motion; that it could properly be made at any time before the time to answer expired.

Appeal from an order setting aside the service of a summons on the ground that it was effected whilst the defendant was attending as a witness before the Senate investigating committee.

Edioard G. Boardman, for app’lt; John J. Adams, for resp’t.

The only difference between this case and that of Thorp v. Adams, decided herewith, is that the defendant was served intermediate the day of his arrival and his examination, which occurred on the 19th of April last; and the point presented is that the motion should have been denied upon the ground of the loches of the defendant in making the motion. The summons was served on the 16th of May last, and“ the order to show cause was not granted until the 5th of June, the affidavit on which it was founded not being verified until the 3d of June. There is no such force in this point as to require a reversal of the order.

The motion could properly be made at any time before the time to answer had expired, and the defendant was not, under the circumstances, called upon to exercise any extraordinary vigilance.

The order appealed from should be affirmed, with ten dollars costs.

Van Brunt, P. J., and,Daniels, J., concur.