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101 A.D. 261

Fitzgerald v. Dakin

Appellate Division of the Supreme Court of the State of New York · decided 1905-01-15

Appeal by the plaintiff, Richard E. Fitzgerald, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of 'St. Lawrence on the 4th day of April, 1904, directing the plaintiff to accept and retain the answer and the demand for a bill of particulars served upon him by the defendant. , The plaintiff, having served the summons and complaint in this action to recover for legal services rendered, the time to…

Decided 1905-01-15

Parker, P. J.:

¶1, The only servicie that is claimed to have been made of the answer and notice in question is that it was dropped loosely, and without being inclosed in any wrapper at ah, in the office letter box of the plaintiff’s attorney, and without being directed to such attorney., Very clearly, such mode'of service is not authorized. It does not at all meet the requirements of subdivision 3 of section 797 of the Code of Civil Procedure, nor does it satisfy any other mode of servicev tolerated by said Code. ' The plaintiff’s attorney was, therefore, regular- in returning the papers in the way he did return them, and I know of no aúthority for the court’s, requiring him to aqcept such service. There is no effort .made in .this, matter.to excuse default in the service of the answer, nor does the order appealed "from purport to be an. order excusing the default and permitting the defendant to'serve another answer. It squarely requires the plaintiff to accept, as good service, a service that was clearly unauthorized by any rule of practice. This may not be done, and, therefore, the order appealed from should be reversed, with ten dollars, costs and disbursements.-

¶2All concurred.,

¶3Order reversed, with ten dollars costs and disbursements.

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