Vail v. Lane

Headnote

Service of answer — when irregular.

Appeal from order of Special Term, setting aside a judgment.

The attorneys for the appellants and all other persons connected with their office, had left the office at five and a half o’clock, p. m., and the office was closed and locked for the night. Between that time and six o’clock, the clerk of defendant’s attorney came to make service of the answer in this action; but, finding the office closed and locked, he procured the janitor of the building to unlock the door, and then left the answer on the table of the managing clerk. The janitor had no authority to open the office for that purpose, and the court held that his act in doing so was that of the clerk who procured him, and the entry of the clerk, under the circumstances, was irregular and unlawful.

The General Term concluded that the order vacating the judgment was granted as a favor, in the discretion of the court; and

that the respondent was not charged with costs, as is usual in granting such favors, because the court discovered some slight acidity of practice in the proceedings of plaintiff’s attorneys. That this was a legitimate stimulant to the exercise of judicial discretion, and this court was not to be called upon to interfere with its exercise.

As by the order below, vitality had not been given to the irregular service of the answer, nor leave to serve a new answer, the General Term directed that the order should be modified by giving leave to re-serve the answer as of the date of the attempted service, so far as affected the date of the issue, with leave to reply to the answer if necessary, or to demur, or to make any motion in respect of the answer on any ground except the regularity of its service; as thus modified the order was affirmed, without costs to either party.