Heller v. Levinson

152 N.Y.S. 35 | N.Y. App. Div. | 1915

Hotchkiss, J.:

A judgment having been taken herein by default, the defendant moved to set it aside and open his default on the ground that the summons and complaint had never been served upon him. The court appointed a referee to take testimony and report his conclusions. From the order confirming said report this appeal is taken.

The alleged service was made by a person who testified that he knew the defendant and that the circumstances of the service were as follows : “I says, ‘How are you Mr. Levinson,’' and he says, ‘All right,’ and I says, ‘I got a little paper for you.’ And he said, ‘I don’t want it,’ and he started to walk away * * *, and as he did so, I pushed it in his outside pocket, and I says, ‘is it all right?’ and he said, ‘It’s all right.’” The referee held that service, if made as described, was ineffectual because the nature of the papers was not disclosed to defendant nor was he in any way informed that service of process was intended or that the paper had in fact been put into his pocket. This view was adopted by the court below. I think this was error. As was said by Judge Earl in Hiller v. B. & M. R. R. R. Co. (70 N. Y. 223, 227): “The object of all service of process is said to be to give notice to the party on whom service is made, that he may be aware of and may resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to defend.” This common-sense rule has been adopted in a number of cases, and wherever service by means other than personal delivery has been held ineffectual, it has been because the circumstances were such as to show that the defendant did not come into actual possession of the papers and that his attention was not drawn to their character, or that he had not willfully ignored them and refused to ascertain their nature for the purpose of evading service. In the present case, if the papers were placed in the defendant’s pocket, and particularly if such a conversation with reference to them took place as testified to, the service was as effectual as if the papers had been handed to and retained by defendant and their nature fully explained to him. It is not to be presumed that after the papers had been placed in his pocket and that fact acknowledged by him, he subsequently failed to ascertain their contents.

The defendant claimed that no service whatever had been made and attempted to prove an alibi, but I think the preponderance of proof shows that service was in fact made.

The order appealed from should be reversed and the judgment reinstated, with ten dollars costs and disbursements of this appeal, together with ten dollars costs on the motion below to vacate the judgment and such sums as the plaintiff was obliged to pay as part of the expenses of the reference, with leave to defendant to apply at Special Term to open his default and answer, on showing merits and on payment of all costs awarded by this order.

Clarke, Laughlin, Soott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, together with ten dollars costs on motion to vacate judgment and such sums as plaintiff was obliged to pay as part of the expenses of the reference, and judgment reinstated, with leave to defendant to apply at Special Term to open his default as stated in opinion. Order to be settled on notice.