147 N.Y. 620 | NY | 1895
The motion to vacate the attachment was made upon the ground that personal service of the summons had not been made, nor publication thereof commenced, within thirty days after the granting of the attachment. The Code of Civil Procedure (§ 638) provides that "personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the state, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete by the continuance thereof." It is claimed that the service of the summons is sufficient to sustain the attachment, if the defendant had notice in time to resist the claim made against it, even though the service was not such as would sustain the entry of judgment *622
on default; relying upon Putnam County Chemical Works v.Jochen (8 Civ. Pro. Rep. 424). Ought the provision of the Code to receive such a construction? It will be observed that it states that "personal service of the summons must be made," etc. This enactment has already received attention in several cases. In Blossom v. Estes (
In this case the attachment was levied upon money belonging to the defendant in the hands of one Rutzler, and at the same time the sheriff left with him a copy of the summons and complaint, together with copies of the attachment papers. A few days thereafter he delivered the papers to one Colwell, *623 the general manager of the defendant. Colwell testified that Rutzler only loaned the papers to him under the promise that he would return them, and before letting him have them marked each paper with his signature for identification, and that shortly thereafter he returned the papers to Rutzler. This statement is not contradicted, and we must, therefore, take it as true. It appears that Colwell communicated the fact of the levy to the directors of the company and also to its attorney, and that he had some talk with the attorney of the plaintiff about the company's appearing in the action, or that he would let him know when the president of the company was to be in town, so that personal service of the summons could be made. But we discover nothing in his failure to disclose his own character, or in what was said about the appearance or service of the president, that estops the defendant from insisting on its legal rights, or that amounts to fraud, deception or an inducement to the plaintiff to allow the thirty days to run without service. We do not understand him to claim that he was misled, for the attorney distinctly states that the time ran because of the miscalculation of the managing clerk. The case must, therefore, be regarded as narrowed to that of service, and upon that we feel compelled to hold that it was not sufficient. (Williams v. Van Valkenburg, 16 How. Pr. 144; McNamara v. Canada Steamship Co., 11 Daly, 297, 300; White v. Coulter, 1 Hun, 357; Smith v. Kerr, 49 Hun, 29.)
We are aware that this conclusion may result in a loss to the plaintiff, but the fault is not with the law. The conduct of the officers of the defendant may not have been what it should, but this furnishes no reason for dispensing with the safeguards with which the statute surrounds the parties who are brought into court to answer charges made against them, nor justifies us in permitting the well-settled practice to be shaken or departed from.
The orders of the General and Special Terms should be reversed and the motion granted, with costs.
All concur.
Ordered accordingly. *624
