Putnam County Chemical Works v. Jochen

Brady, J. The defendant insists that the summons issued in this case was not served upon him; but, if it was not served upon him as certified by the sheriff of Kings county, it was brought to his notice through the instrumentality of the deputy sheriff, Hardoncourt. The latter left the summons, he says, with a man named Brown, at his place of business, but had no knowledge of what became of it, except what Brown told him, and what Brown told him is not revealed. On being asked who Brown was, he said: “ I don’t know; he works in a factory there.” What he meant by “there’-’ is not disclosed, but; by connection with other facts and circumstances, it may be, and doubtless was, the factory on the corner of North Twelfth and Fifth streets, Williamsburgh, Brooklyn, E. D., Kings county. One Blum, however, states that while he was working at the place just referred to, and in a molasses factory, and on or about [165] the 31st of August, 1885, a man left some papers with, him, requesting him to give them to the boss (meaning the defendant) of the chemical factory, which was also situate on that corner. The person who made this request left his card also, which bore tbe name of the deputy, Hardoncourt.' The deputy did his work in a slovenly way. He left the papers he was required to serve with a stranger, to be given to a stranger; and, upon tbe faith of the papers having, reached the.defendant, returned the process as served. Blum (we have no affidavit from Brown) left the papers behind a clock on the premises of his employer, and some days after., on looking for them, learned that they were not there. These papers, however, reached the hands of the defendant’s book-keeper, one Andersen, who informed the defendant of the facts detailed by Blum, and placed the papers in the hands of his attorney. "Whether it was the defendant’s attorney or Andersen’s does not appear, but it does clearly appear that tbe defendant’s attorney and Andersen were in communication about the process. Although the service of the summons was not made in a due and orderly manner, and exception may therefore be justly taken to tbe proceeding in tbat respect, nevertheless tbe defendant was sufficiently advised of the proceeding to protect his rights, and the order made on the motions has done so by allowing bim to come in and defend. The learned .justice in tbe court below, however, vacated the judgment conditionally, requiring the defendant to give security. In this, we think, he erred. The attachment was not vacated but continued, and this was all tbat the plaintiff could justly expect under the circumstances. It is not necessary to seek for authorities to sustain the order holding the attachment, under circumstances such as disclosed herein. The object of the summons was to advise/ the defendant of the commencement of the action, which had been preceded by an attachment, of which the defendant does not assert he was ignorant. Indeed, the facts and circumstances warrant the impression that the course of events was watched and uninterrupted, with a view to the motions made, and from the result [166] of which the appeals are taken. This is a technical mode of action, but not always reliable. Here it fails. In Hilton agt. Thurston (1 Abb. Pr., 313) the facts were similar to- those disclosed herein, and there the defendant did not succeeding in avoiding the consequences. The order granted should, however, be modified as suggested, and the defendant allowed to appear and defend on the payment of the costs of the motion. The appeals here are thus disposed of, without costs of appeal to either party. Davis, P. J., and Daniels, J., concurred.