Rogers v. Rockwood — 36 N.Y. St. Rep. 919

Majority

p. 919

Julia J. Rogers, App’lt, v. Ellen A. Rockwood, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 16, 1891.)

Headnote

1. Service—Of papers.

A service of papers on an attorney by thrusting the same under his door

p. 920

when it was locked is not regular or effective, but such irregularity is waived where the paper is retained and acted upon by the attorney.

2. Same—Waiver.

Where an answer served after the last day allowed for service thereof is retained by the plaintiff’s attorney he cannot thereafter avail himself of any irregularity in the service thereof.

Appeal from an order of the special term entered in Niagara county December 4, 1890, requiring the plaintiff to receive and accept the defendant’s answer, and directing that a service thereof, which was made on the 21st day of November, 1890, be deemed a good.service, and that the answer so served stand as the answer in the case.

Henry M. Davis, for app’lt; John T. & & Cady Murray, for resp’t.

The summons in this action was served, without the complaint, on the 16th day of September, 1890; notice of appearance was put in by the defendant’s attorneys, and a demand of a copy of the complaint, with a proper designation of the place where the same might be served.

On the 25th day of October of that year the complaint was taken to the office of the defendant’s attorneys, but the doors thereof being locked, the same was thrust under the door inside of the office, and the same was found the next day by one of the attorneys upon the floor, taken up and placed upon the table of his partner with a memorandum written thereon that he had found the same tucked under the door. Such service clearly enough was not regular and effective under subdivision 3 of § 797 of the Code of Civil Procedure. Livingston v. The N. Y. Elevated R. R. Co., 33 N. Y. State Rep., 818. But the retention of the complaint, which was subsequently acted upon by the attorneys for the defendant to the extent of making answer thereto, was a waiver of the irregularity of the service. Georgia Lumber Co. v. Strong, 3 How. Pr., 246 . The motion at the special term could not, therefore, have been granted on the ground that there had not been previously a good service of the complaint.

The answer of the defendant was actually served by leaving the same with the partner of the plaintiff’s attorney on the 21st day of November, 1890, about one week after the same was due. No admission of service was given', but, on meeting the plaintiff’s attorney, a conversation was had between him and one of the attorneys for the defendant to the effect that the former desired to see his client before determining definitely whether he would accept or not the answer so served out of season. It appears, however, that the answer was never returned to the attorneys for the defendant, although, on the street the next day following the service thereof, the plaintiff’s attorney informed one of the attorneys for the defendant that his client did not desire him to accept such answer. We think that the rule stated in Georgia Lumber Co. v. Strong, supra, is equally applicable to the acts of the plaintiff’s attorney, and that, consequently, inasmuch as he retained the answer, he is not in position to avail himself of any irregularity in the service thereof.

p. 921

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

Dwight, P. J., and Corlett, J., concur.