Martin v. McCurdy

105 N.Y.S. 474 | N.Y. App. Div. | 1907

Sewell, J.:

This action was commenced by the plaintiff, a policyholder of the Mutual Life Insurance Company, on behalf of himself and all other persons similarly situated, to recover certain sums alleged to have been wasted by the negligence of the defendants, who were directors of the company.

The summons was served January 3, 1906. On January eighteenth the defendant, Robert H. McCurdy, appeared by attorney and demanded a copy of the complaint. The complaint was not served until July thirtieth, when it was returned with the ground of objection indorsed thereon. Mo further steps were taken until February 8, 1907, when the plaintiff’s attorney served a notice of motion, returnable Mal’ch ninth, for an order permitting service of the complaint,, with the same force-and effect as though service had been made within twenty days after service of the summons herein.

The motion wa.s based upon an affidavit of the plaintiff’s attorney in which he said: “That by reason of deponent’s professional engagements-and the care required in the preparation of the complaint (which is quite voluminous), he was unable to prepare and serve it within the time fixed therefor, viz., twenty days after the service" of the summons herein upon" this defendant.” He also stated that he had delayed making a motion for leave to serve the complaint 'until the determination of a demurrer to the complaint in an action against the Equitable Assurance Company, involving substantially the same questions.

Section 783 of the Code "of Civil Procedure permits the court, upon good cause shown, to relieve a party from the consequences of an omission to serve a pleading within the time allowed by section 479. Under this section the burden was upon the plaintiff of' making it appear to the court that there was a. reasonable excuse for his neglect, and this he entirely failed, to do.

The only excuse presented in the papers was the press of professional engagements during the twenty days foil owing "the service of the summons herein. There is no pretense that professional engagements prevented preparation or tender of the complaint until July. 30, 1906j and no attempt was made to excuse his default after .that date.

It is clear that this vague and general statement of plaintiff’s counsel did not furnish the basis for the exercise of judicial discretion and was not sufficient to relieve the plaintiff from the consequences of liis long-continued inaction. The plaintiff was guilty of great laches in making the motion, and for that reason, if no other, it should have been denied.

The order appealed from should .be reversed, with ten dollars costs and disbursements.

All concurred, except Kellogg, J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.