Palmer v. Rotary Realty Co.

233 A.D. 764 | N.Y. App. Div. | 1931

The orders herein entered in the office of the clerk of Kings county on May 27, 1929, and on June 21, 1929, are reversed upon the law and the facts, with ten dollars costs and disbursements, and the motion of plaintiff Rose M. Palmer dated May 7, 1929, for an accounting by Louis Levin as receiver, and the motion of said plaintiff dated May 23, 1929, for an order setting aside the order dated July 20, 1928, settling the account of said receiver and terminating his receivership, are granted, with ten dollars costs on each motion. It appears on the face of the original papers that the notice of motion to settle the account of the receiver was dated May 29, 1928, and was made returnable June 6, 1928, and that it purports to have been served upon Rose M. Palmer by mail by depositing the same on June 1, 1928, in a United States post office box in Brooklyn, addressed to said Rose M. Palmer at 501 Gates avenue, Brooklyn, as appears by the original affidavit of service. This service by mail did not conform to the requirements of rule 60 of the Buies of Civil Practice and section 164 of the Civil Practice Act. ^* Plaintiff Rose M. Palmer was entitled to eight days’ notice of the motion, the service being by mail. She had but five days’ notice. It follows that the Special Term did not acquire jurisdiction and that the order dated July 20, 1928, was void as to Rose M. Palmer. The court has heard and determined these appeals on the original papers herein filed in the office of the clerk of Kings county. Young, Hagarty, Seudder and Tompkins, JJ., concur; Lazansky, P. J., taking no part.

* Amd. by Laws of 1925, chap. 492.— [Rep.