Garabettian v. Garabettian

206 A.D. 502 | N.Y. App. Div. | 1923

Martin, J.:

The defendant sought to set aside the service of papers upon the ground that he was enticed into the jurisdiction of this court by fraud and deceit. In the moving affidavit it is averred that defendant was called to the telephone at his place of business, a barber shop at Hackensack, N. J., and was asked about selling it; that the party speaking said he had a purchaser for a barber shop, and suggested that he would telephone again and would arrange to meet defendant in New York; that defendant learned of a barber shop in Hackensack for sale; that subsequently he received another telephone message purporting to be from the same man who had previously telephoned him, who, on this occasion, suggested that defendant might make some money on the sale and that he meet the speaker in New York; that this conversation led to an arrangement for defendant to call at No. 52 Lexington avenue, New York city, at a stated time; that defendant kept the appointment and was met by a man about forty-five years of age, who handed him the papers above referred to, and who, upon being questioned by defendant, said that it was for the purpose of serving the papers he was wanted in New York, and said “ this is the only way I could get you.”

Nothing to contradict these allegations was produced excepting an affidavit of one of plaintiff’s attorneys denying them upon information and belief, and stating that he was unable to secure an affidavit from the process server.

Where, as here, it appears that a defendant has been enticed into the jurisdiction by fraud and deceit, the service of papers thereby effectuated will be vacated. (Olean R. Co. v. Fairmount Co., 55 App. Div. 292; Wyckoff v. Packard, 20 Abb. N. C. 420; Dunham, v. Cressy, 4 N. Y. Supp. 13; Blandin v. Ostrander, 239 Fed. Rep. 700.)

The order should be reversed and the motion granted.

Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.

Order reversed and motion granted.