Lyster v. Pearson — 55 N.Y. St. Rep. 778

Majority

p. 778

Frederick Lyster, Resp’t, v. Alma Y. Pearson, App’lt.

(City Court of New York, General Term,

Filed November 27, 1893.)

Headnote

1. Service—Designation oe person to receive.

A general designation, authorizing a person named to receive service of summons or process for one year from its date, is sufficient to authorize service on such person, notwithstanding any secret limitations on his authority.

2. Default—Conditions.

On opening a judgment taken by default the court has the right to impose the payment of costs as a condition.

Appeal from order opening a default and vacating judgment on conditions.

Secor & Page, for resp’t, Smith, Bowman & Close, for app’lt.

This is an appeal from an order opening a •default, and vacating the judgment entered thereon on condition that defendant pay plaintiff's attorney fifteen dollars costs and serve his answer within six days.

It is contended on the part of the appellant that the judgment ■should have been absolutely set aside without any conditions, for the reason that there was no personal service on the defendant

It appears that service of the summons herein was made on one Mortimer, a person who had been designated by defendant for that purpose.

It is claimed, however, by defendant that said Mortimer was not to use such designation, nor file the same with the county clerk, unless the defendant was travelling out of the United States.

The designation, however, is general, and it authorizes Mortimer, for one year from its date, to receive service óf summons or

p. 779

■process in any action or proceeding in any court, and the service having been made under such designation, the judgment was properly entered herein.

It was, therefore, a judgment by default, and the justice at special term in opening such default had a right to impose the conditions he did.

The order appealed from must be affirmed, with costs.

McCarthy, J., concurs.