Gesell v. Wells
| Decision Date | 14 October 1930 |
| Citation | 173 N.E. 885,254 N.Y. 604 |
| Parties | GESELL et al. v. WELLS. |
| Court | New York Court of Appeals Court of Appeals |
Action by Caroline Gesell and another against Louis A. Wells and Jeffrey Wells. From an order (229 App. Div. 11, 240 N. Y. S. 628), modifying, and affirming as modified, an order of the Special Term (134 Misc. Rep. 331, 236 N. Y. S. 381) denying a motion to set aside the service of the summons and complaint, defendant last named appeals by permission, and the Appellate Division certified certain questions (229 App. Div. 821, 242 N. Y. S. 902).
Order affirmed, and questions answered.
Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Third judicial department, entered April 7, 1930, which modified, and affirmed as modified, an order of Special Term denying a motion to set aside the service of the summons and to dismiss the complaint as to both defendants so as to direct the setting aside of the service of the summons and a dismissal of the complaint as to the defendant Louis A. Wells. The action was to recover for personal injuries and property damage arising out of a collision between a motor truck belonging to one of the plaintiffs and a touring car owned by the defendant Louis A. Wells and driven by the defendant Jeffrey Wells, with his consent within the state of New York. The defendants are residents of the state of Wisconsin, and service was obtained upon them by the delivery of a copy of the summons and complaint to the secretary of state pursuant to section 285-a of the Highway Law, now section 52 of the Vehicle and Traffic Law (Consol. Laws, c. 71). The defendants appeared specially and moved to vacate the service of the summons and for a dismissal of the complaint on the ground that the defendant Louis A. Wells was not in the state of New York at the time of the accident, and that the defendant Jeffrey Wells was an infant, and that any implied agreement on his part, growing out of the provisions of section 285-a of the Highway Law was either void or voidable at his election. The following questions were certified:
‘1. Were the agreement and appointment made by the infant defendant, Jeffrey Wells, by virtue of the provisions of section 285-a of the Highway Law, in effect on August 1, 1928, when he operated a car as a nonresident in the State of New York, capable of being disaffirmed by him on account of his infancy?
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