O'Connell v. Gallagher

93 N.Y.S. 643 | N.Y. App. Div. | 1905

Lead Opinion

Ingraham, J.:

■This action was brought to foreclose a mortgage, and judgment was entered by default on October 21,1904. Annexed to the judgment roll was an affidavit of the service of the summons and complaint upon the defendant Gallagher, who was the- owner of the equity 'of redemption, in which the affiant swore that she had served the summons and complaint upon the defendant Gallagher and that she knew the person served to be the person mentioned and described in the summons as one of the defendants in the action. On.November 16, 1904, defendant Gallagher noticed a motion to set aside the judgment on the ground .that, the summons had never been, served upon her. Her affidavit was corroborated by that of an employee, who swore that on July 16, 1904, a woman called at the place of business of the defendant Gallagher and asked the dep.onent whether she was “ Miss Callahan; ” that deponent said she was not, that her name was “ Miss Maher; ” that after this woman had gone the deponent noticed a paper lying on the floor which the deponent picked up and found it to be a paper marked “ Copy Summons and Complaint ” in an action wherein Thomas F. O’Connell was plaintiff and Margaret C. Gallagher and others were defendants; that the deponent was the only person who saw this woman and was with her all the time until she left the house, and that the defendant Gallagher did not come into the room, nor did this woman see her. In opposition to this motion there was introduced the affidavit of Mary Lawler who says that she was the person who made the affidavit of service of the summons and complaint on the defendant Gallagher; that before proceeding to serve the summons upon the defendant Gallagher, the deponent was given a description of the said Margaret C. Gallagher to enable her to identify her as the defendant; that on the 16th day of July, 1904, she called at the place of business of the defendant Gallagher, was admitted to the house, and a lady answering in every respect to the description given of the defendant, Margaret C. Gallagher, came upstairs from the basement and stated that she was Mrs. Gallagher; that the only person she saw was the person who said she was Mrs. Gallagher; that the deponent had a conversation with the defendant Gallagher in relation to the making of a dress and in relation to the price which she would charge, and then the person to whom the deponent was talking said, “ I am not Mrs. Gallagher, but I am Madame Moore; ” that Mrs. Gallagher was’there formerly,, but she had sold the estabment and was not there any more; that as deponent walked toward the door she handed a copy of the summons and complaint to her and placed it in her hand, and she let it drop on the floor; that the person whom the deponent served answered to the description of the defendant Gallagher, as contained in another affidavit which was used in opposition to the motion. There was also produced an affidavit of the plaintiff’s attorney which tended to show that the defendant Gallagher had been evading service of the summons. In reply affidavits were submitted by the defendant Gallagher corroborating the statement that the summons and complaint were not served" ¡upon her. Upon, these affidavits the court denied the j motion and the defendant Gallagher appeals.

Subdivision 4 of section- 426 of the Code of Civil Procedure provides that personal service of the summons upon a defendant being a natural person must be made by delivering a copy thereof within this State to the defendant in person; and section 434 of said Code provides that proof of service must be made by affidavit, and rule 18 of the General Rules of Practice prescribes the contents of the affidavit. The affidavit of .service in this Case states that the deponent knew the person served to be the defendant Gallagher, but from the affidavits' submitted on this motion it appears that this statement was untrue, that the affiant did'not know the defendant Gallagher personally, her only knowledge being that before proceeding to" serve the summons the affiant was given a description of the defendant Gallagher" to enable her to identify her as the defendant. What this description was, or by whom it was given, does not appear; but the evidence is substantially undisputed that, the summons and complaint were never delivered .by the person serving the same to the. defendant Gallagher. If we accept the Affidavit of the employee of the defendant Gallagher who saw the person who is alleged to have made the service, there'was no Service of the summons and complaint upon anybody, but they were left upon the floor of the defendant Gallagher’s apartment by the person pretending to have .made the service. The fact that that paper was subsequently discovered and delivered to the defendant Gallagher by an employee would not be a service upon her or require her to appear and answer the complaint.' Upon the conceded facts there, was no proof that the summons was served upon the defendant Gallagher ■"as required by section 426 of the^Code of. Civil Procedure. Read- . ing the two affidavits of fhe person who undertook to serve, this summons on the defendant Gallagher together, it is quite ‘ apparent that, there was no proof that she knew the defendant Gallagher or . that:the summonswds ever delivered to her personally, and, therefore, we think the motion should have been granted.

The motion was denied Upon the ground that, it was..absolutely certain that' the defendant Gallagher was.' apprised óf what was .going oil, and that as all that the Code of Civil Procedure requires is that the process shall be personally given to! the defendant and left with her, it makes no difference in whose employ a person is who made the service,; that the delivery of the summons and complaint to the defendant satisfied every requirement of the. Code of Civil Procedure, and that as the defendant" Gallagher had been guilty of gross and inexcusable laches in deliberately refraining from moving to set the service aside, relying upon the supposed invalidity of any. judgment which might be entered, the motion should have been denied.

I do not think this correctly states the requirements of the Code of Civil Procedure. The fact that the summons and complaint is. found upon the floor of a house, or in the street by a defendant in an action, or is delivered to a defendant in the action by one so-finding it, is not the service that the Code of Civil Procedure requires, and defendant is under no obligation to appear and answer because a copy of the summons in an action in which she is named as a defendant comes incidentally into her possession when there-is no delivery of the summons as a service upon her. Under such circumstances the defendant was justified in waiting until the-judgment was sought to be enforced. The question of laches,, therefore, cannot be considered, as the defendant had the legal right to have this judgment set aside at any time upon it appearing that it had been entered without actual service of the summons. The proof by affidavit of the service of a summons required by the. Code of Civil Procedure must be the affidavit of one who has some personal knowledge that the person served was the defendant in the action, or at least some proof from which such knowledge can be inferred. A judgment entered without personal service of the summons is void as against the defendant who has not been served, and as it appears that the defendant Gallagher was not served, I think this judgment was void, and that the person against whom it. purported to have been granted was entitled to have it vacated upon presenting to the court the fact that the summons had not been served upon her. The only case which sustains such a service is Hilton v. Thurston (1 Abb. Pr. 318). That motion was denied because it was an irregularity to serve the summons upon the defendant’s bookkeeper, and not upon the defendant, but such, we think, is not the result of such an" attempted service of the summons. It was not an. irregularity, but a nullity, and the judgment' as against defendant upon whom the summons had not been served was void. /

Our conclusion is that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, . with ten dollars costs.

Patterson, McLaughlin and Laughlin,' JJ., concurred.

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Concurrence Opinion

Van Brunt, P. J. (concurring):

I do not think that there was a particle of proof that the summons and complaint have ever been served. ' The person who claims to have made the service admits having committed perjury-in the affidavit of service. Hence no reliance whatever can be placed upon anything else sworn to by her.

Order reversed, with fen dollars costs and disbursements, and motion granted, with ten dollars costs.