Rogers v. Rockwood

Macomber, J. The summons in this action was served witnout the complaint, on the 16th day of September, 1890. Notice of appearance was put in by the defendant’s attorneys, and a demand of a copy of the complaint, with a proper designation of the place where the same might be served. On the 25th day of October of that year the complaint was taken to the office of the defendant’s attorneys, but, the doors thereof being locked, the same was thrust under the door inside of the office, and the same was found the next day by one of the attorneys upon the floor, taken up, and placed upon the table of his partner, with a memorandum written thereon that he had found the same tucked under the door. Such service clearly enough was not regular and effective under subdivision 3 of section 797 of the Code of Civil Procedure. Livingston v. Railroad Co., 11 N. Y. Supp. 359. But the retention of the complaint, which was subsequently acted upon by the attorneys for the defendant to the extent of making answer thereto, was a waiver of the irregularity of the service. Lumber Co. v. Strong, 3 How. Pr. 246. The motion at the special term could not, therefore, have been granted on the ground that there had not been previously a good service of the complaint. The answer of the defendant was actually served by leaving the same with the partner of the plaintiff’s attorney on the 21st day of November, 1890, about one week after the same was due. No admission of service was given, but, on meeting the plaintiff’s attorney, a conversation was had between him and one of the attorneys for the defendant to the effect that the former desired to see his client before determining definitely whether he would accept or not the answer so served out of season. It appears, however, that the answer was never returned to the attorneys for the defendant, although on the street, the next day following the service thereof, the plaintiff’s attorney informed one of the attorneys for the defendant that his client did not desire him to accept such answer. We think that the rule stated in Lumber Co, v. Strong, supra, is equally applicable to the acts of the plain 940 tiff’s attorney, and that consequently, inasmuch as he retained the answer, he is not in position to.avail himself of any irregularity in the service thereof. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.