p. 343Charles F. Smith, Respondent, v. Claude L. Gouraud, Appellant.Headnote
Default — order directing cm attm’ney to receive a complaint.Where the time to serve a complaint had expired, the plaintiff moved the court for an order to compel the defendant to accept the complaint, and for such other relief as the court might grant.
Held, that while the motion should have been one to open the default, yet, as sufficient facts appeared to warrant the opening of the default, an order directing the defendant to accept the complaint should be sustained.
Appeal by the defendant, Claude L. Gouraud, from an order made at the New Tork Special Term and entered in the office of the clerk of the county of New Tork on the 5th day of October, 1898, compelling the defendant’s attorney to accept service of the plaintiff’s complaint.
Stejphen O. Baldwin, for the appellant.
Edwin B. Lemitt, for the respondent.
The complaint was served after the time for such service had expired, and the plaintiff, therefore, as a matter of right, could not have insisted upon the defendant accepting the same, and the form of his motion, instead of being to compel defendant to accept, should have been to open the default. ' In his notice of motion,
p. 344however, he asked for such other relief as the court might grant, and sufficient facts appearing to warrant the opening of the default and the granting of the motion for leave to serve the complaint, it is to be assumed that this was the relief which the court intended to grant.
¥e think, therefore, that while the form of the notice of motion and the order entered upon granting the same may not be strictly correct, because requiring the defendant to accept the complaint, instead of opening the default and granting permission to serve the complaint, that the proper disposition to be made of the appeal would be to affirm the order, without costs.
Present — ■ Yan Brunt, P. J., O’Brien and Follett, JJ.
Order affirmed, without costs.