Tolhurst v. Howard, 88 N.Y.S. 235

Tolhurst v. Howard

88 N.Y.S. 235 | N.Y. App. Div. | 1904

Lead Opinion

Ingraham, J.:

The action was brought to recover for work, labor and services furnished by the plaintiffs to the defendant. The plaintiffs’ attorney has an office in the city and county of Hew York. The summons was served upon the defendant; in Hew York without a comí plaint, was indorsed “Supreme Court, New York County,” and contained the statement, “Trial desired in Hew York County.” On January 9, 1904, the defendant appeared in the action and demanded that a copy of the summons and complaint be served upon his attorney; that notice of appearance stated the action to be in Hew York county. In answer to this demand the plaintiffs,' on January 15, 1904, served upon the defendant’s attorney a copy of the complaint entitled “ Supreme Court, Rensselaer County,” and service of this complaint was admitted by the defendant’s attorney. The complaint was retained by the defendant without objection. The admission of service was dated January 12, 1904. On February 3, 1904, no answer having been received, the plaintiffs entered judgment in Rensselaer county, but on February 5, 1904, the defendant’s attorney served upon the plaintiffs’ attorney a verified answer, which the plaintiffs’ attorney on the same day returned on the ground that the time to answer had expired, whereupon the plaintiffs made this motion in the county of Hew York to set aside the judgment, which the court granted, and permitted the defendant to re-serve the answer within five days after the entry of the order. From that order the plaintiffs appeal.

I think the answer was served in time. The defendant had, by the Code of Civil Procedure, twenty days after service of the complaint in which to serve his answer. Section 520 of the Code of Civil Procedure provides that “ a copy of each pleading, subsequent to the complaint, *441must be served on the attorney for the adverse party within twenty days after service of a copy of the preceding pleading.” Section 1212 provides that if “ the defendant has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only, and also proof by affidavit of the default. Whereupon the clerk must enter final judgment in his favor.” It is conceded that the answer was served within twenty days of the service of the complaint. The fact that the admission of service was antedated three days by inadvertence would not entitle the plaintiffs to enter judgment by default until twenty days after the actual service of the complaint, as, by section 520 of the Code of Civil Procedure, the defendant is given twenty days from the service of the complaint to answer.

The judgment in this action was entered in the county of Rensselaer. The motion to vacate that judgment was made in the county of Hew York. The plaintiffs claim that the action is pending in the county of Rensselaer and that, therefore, this motion was improperly made in the county of Hew York,, but must be made in the county in which the action is pending. The summons expressly stated that the action was to be tried in Hew York county. Therefore, when the action was brought it was an action pending in the county of Hew York, and all subsequent proceedings in that action would have to be had in that county. The complaint, when served, was entitled in the county of Rensselaer, and the defendant’s attorney admitted service of that complaint and retained it without objection. The answer stated, as did the summons, that the action was in the county of Hew York. That answer was returned by the plaintiffs’ attorney the same day on which it was served, for the reason that it was not served within the time required by law. The answer was not returned upon the ground that it was entitled in the wrong county; and that objection not having been taken, cannot justify the plaintiffs in refusing to receive it.

. If from these facts the action was pending in the county of Hew York, the motion to vacate the judgment was properly made there. If pending in Rensselaer county, the court below should not have entertained the motion. (Code Civ. Proc. § 988.) Section 417 of the Code of Civil Procedure provides that the summons must *442contain the title of the action, specifying the court. in which the action is brought, the names of the parties to the action, and, if it is brought in the Supreme- Court, the name of the county-in which the plaintiff desires the trial. The summons in this case specified the county in which the plaintiffs desired the trial as the county of New York. Section 481 of the Code of Civil Procedure provides that the complaint must contain the title of the action, specifying the name of the court in which it is brought and, if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of. trial. In the General Term of the Supreme Court it was held that where the summons and complaint, when originally served, named one county, and the plaintiff served an amended complaint, which designated another county as the place of trial, the place of trial was changed to the county designated in the amended complaint (Rector v. Ridgwood Ice Co., 38 Hun, 293; McCosker v. Smith, 20 Civ. Proc. Rep. 324; affd. on opinion below, 133 N. Y. 672); and these cases were followed by the Appellate Division in the third department in Fisher v. Ogden (12 App. Div. 602). In Goldstein v. Marx (73 App. Div. 545) it was held that a mere inadvertence in stating in a complaint a different county from that stated in the summons would not be held to change the place of trial, provided the plaintiff’s attorney moved promptly in the matter to correct the error so as not to permit his adversary to act upon the assumption that the change was intentional. This is not inconsistent with the other authorities cited, but it does not apply to this case when the plaintiffs intended that the place of trial should be Rensselaer county and the defendant’s attorney admitted service of the complaint entitled in Rensselaer county and retained it without objection. It would appear, therefore, that it is the settled practice that the service of a complaint subsequent to the service of the summons, stating a different place of trial from that stated in the summons, changes the place of trial to the county named in the complaint, and that thereafter the action is pending in the - county named in the complaint, unless it appears that the insertion of the place of trial in the complaint was an inadvertence, and the plaintiff promptly takes steps to correct the error before the defendant has acted in reliance upon the change of place of trial.

*443It follows that this motion should have been made in the county in which the action is pending, namely, Rensselaer county; and for that reason the order must be reversed, with ten dollars costs and disbursements, and the 'motion denied, with ten dollars costs, with leave" however, to renew the motion in the proper county.

O’Brien and Laughlin, JJ., concurred.

Concurrence Opinion

Hatch, J.

(concurring):

I concur solely upon the ground that the place of trial named in the complaint controls the venue, and that the motion could not, therefore, be made in the county of New York. I also think that the date of admission of the service of the complaint was controlling and enabled the plaintiffs to act thereon; and if the admission of service upon such date was inadvertent, the defendant was required to take affirmative action to be relieved therefrom.

McLaughlin, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew in the proper county.