p. 800James G. Timolat, Resp’t, v. S. J. Held Company, App’lt. Oakland Chemical Company, Resp’t, v. Same, App’lt.(New York City Court, General Term,Headnote
1. Service and proof—Attorney—Order for stay.Under subdivision 3, section 797 of the Code, service of an order to show cause, containing a stay, by depositing a copy through a slit in the door of an attorney’s office having no letter box, in his absence is insufficient to give effect to the stay.
2. Judgment—Rendition pending stay—Vacation,
A judgment will not be vacated on the ground that it was rendered pending a stay, where, in addition to an improper service of the order for the stay, the defendants appear to have no defense upon .the merits of the cause of action; and the motion to set aside the summons in which the stay had been given Was afterwards, on a deliberate investigation by a referee, denied, and by the vacation of the judgment subsequent creditors would gain an undue advantage over the plaintiffs.
Appeal from orders, denying motions to set aside judgments in favor of the plaintiffs.
H. B. Wesselman, for app’lt; W. R. Beach, for resp’t.
—These are appeals from orders denying motions to set aside the judgments herein entered on November 9, 1895, on the ground that, they were irregularly and improperly entered because a stay of proceedings was in force at the time of the entry of said judgments, granted in the same actions, on a motion instituted by order to show cause “ to vacate and set aside the service of the summons” on the ground that J, Julian Held, upon whom the summons was served, was not an officer of the defendant company at the time of the service. The summons was served on November 2, 1895. On November 8, 1895, at six o’clock p. m., Justice Botty granted an order to show cause, with
p. 801a stay, which was attempted to be served on November 9, 1895, at 8:55 o’clock a. m., at plaintiffs’ attorney’s office, by inclosing copies thereof with affidavit upon which-they were granted, in an envelope addressed to plaintiffs’ attorney’s office, and depositing them, through a slit in the door of said attorney’s office, into his office. .Plaintiffs’ attorney had then no letter box in his office, and his office was closed. At 9:50 a. m. of that day, plaintiffs’ attorney, without having had any' notice whatever of the stay, as granted by the coart, entered up judgment.
Under this statement of facts, I hold that the service of the orders to show cause, with the stay, was not served in compliance witii subdivision 3 of section 797 of the Code, and was not binding on the plaintiffs or their attorney. Livingston v. N. Y. El. Railroad Co., 33 St. Rep. 818 .
Considering, in addition, that defendants appear to have had no defense upon the merits of the cause of actions, and the. motions to set aside the summons in which the stay had been given were afterwards, on a deliberate investigation by a referee, denied, and considering further, that by' vacating these judgments subsequent creditors would gain an undue advantage over these plaintiffs, it would be an injustice, instead of justice, to reverse these orders.
Order appealed from affirmed, with costs.
All concur.