Baker v. Wales

Headnote

Where deceit has been used for the purpose of bringing a defendant within the jurisdiction of this court, who otherwise would not be amenable thereto, the court on motion will vacate and set aside the summons.

Appeal from order vacating and setting aside service of summons.

The following is the opinion delivered at Special Term:

Sedgwick, J.—The facts seem to Tbe that the plaintiffs kept in their office parcels of summons with places left "blank for defendants’ names, and amounts to be claimed. The inference is, that if a business interview were not satisfactory, service of summons would follow, after the blanks had been filled up.

On January 19th, one of the plaintiffs wrote to defendant, who lived in Connecticut, to come to New York to settle the claim in dispute, and to answer by return mail whether he would come. He did not answer until the 26th, and did not come until 30th. Then he had an unsuccessful negotiation with plaintiff’s clerk, who served him with the summons in this case, after he had filled in the defendant’s name. This summons was dated 20th January, the day after the plaintiff’s letter to defendant to come to New York.

There would be no doubt in the case, if it were not for the plaintiffs’ affidavits that the letter was written and the interview sought for the purpose of settlement, solely.

But there is a conclusion consistent with this to be drawn from all the facts ; that is, that irrespective of a particular interest in this particular case, there was a general purpose to have interviews with business customers, who went there only for business purposes, and then the clerk, having blank summons in reserve, to serve them if the customer did not come to terms—so the clerk would be instructed. Under this general system of business, it would be only necessary for the plaintiffs to write a letter solely for the purpose of settlement in a particular case, and the clerk would serve the summons under the general instruction. Nevertheless,

the result would be that a defendant would be deceived, and the deceit would be used for the purpose of effecting a service.

Motion granted, with $10 costs.