Kinley v. American Hardware Manufacturing Co.

Gildersleeve, J. This motion presents a somewhat peculiar state of affairs. The defendant was served with process without the State, under an order of publication, on February 24, 1905. It appeared in the action by the service of a notice of appearance and a demand for the service of a copy of the complaint on March 13, 1905. Thereafter, and on March 15, 1905, defendant procured an order ex parte requiring plaintiff to file security for costs as a nonresident, and extending defendant’s time to answer or demur twenty days from the time when such security should be filed. On March 1Y, 1905, plaintiff filed the security. This motion is made, by the plaintiff to strike out of said order of March fifteenth the provision for the extension of time to answer, on the ground that the affidavit upon which said order was granted- did not comply with the requirements of Buie 24 of the General Buies of Practice. Bo copy of the complaint has yet been served since the service of the demand therefor of the defendant on March thirteenth. The defendant [335] claims that, inasmuch as a notice of appearance and demand for a copy of the complaint were served, the defendant’s time to answer does not commence to run until its attorneys have been served with a copy of the complaint, citing Sanders v. People’s Co-o. Ice Co., 44 Misc. Rep. 171. Were this so, the provision in the order, which makes the time commence to run from March seventeenth, might be treated as irregular, if not an absolute nullity. But the learned counsel for defendant has fallen into a misconception upon this point. It has been held that a defendant served by publication may, before the service is completed, appear and demand a copy of the complaint, if one has not been delivered to him personally, notwithstanding one was served on him by mail; and his time to answer runs from the time of the service of the copy of the complaint in compliance with such demand, unless otherwise fixed by stipulation. Van Zandt v. Van Zandt, 23 Abb. N. C. 328. But in the case at bar process was served personally on defendant without the State, and it has been held that where the summons and complaint are personally served, even without the State, under an order for service by publication the attorney for defendant so served has not a right, on appearing, to demand another copy of the complaint. Skinner v. Skinner, 23 Abb. N. C. 327. We must, therefore, look into the merits of the objections to the sufficiency of the affidavit upon which the order of March fifteenth was granted, so far as the extension of time to answer is concerned. Because the order in question also directs the filing of security for costs, with a stay of proceedings on plaintiff’s part until such filing, I do not see in this any reason for a noncompliance with Rule 24, so far as the extension of time is con-" cerned. The language of the rule is unmistakable. It says: “ bio order extending a defendant’s time to answer or demur shall be granted unless ” the applicant complies with certain ■conditions. It is conceded in the case at bar that defendant has not complied with those conditions. The defendant’s counsel cites Bronson v. Freeman, 8 How. Pr. 492, which was decided in 1853, long prior to the taking of effect of the -said provisions in Rule 24. The case of Corn Exchange [336] Bank v. Kimball, 20 Abb. N. C. 290, a decision of the City Court of New York, is not binding here. The same is true of the case of Worthington v. Warner, 19 Abb. N. C. 266. In the case of First National Bank v. Ranger, 14 Civ. Pro. 1, a Special Term decision of the Supreme Court, Hr. Justice Andrews simply held that “ it is extremely doubtful whether the order extending defendants’ time to answer was void, and whether plaintiff had a right to disregard it merely because no affidavit of merits was presented.” In the case at bar there is no attempt to disregard the order or look upon it as void; but simply to have stricken out as irregular and improper the extension of time, because of the defects of the affidavit in not responding to the requirements of Buie 24. The defendant’s time to answer does not expire for six weeks and twenty days from February 24, 1905, when the summons and complaint were personally served-without the State. Market National Bank v. Pacific National Bank, 89 N. Y. 397; Code Civ. Pro., §§ 440, 441, 520. If, at the expiration of that period, defendant requires additional .time, it can apply for an extension upon proper affidavits ; but the extension granted in the order of March fifteenth is not regular and should be stricken out. Motion granted. No costs.