Miller v. Holzhauser

• Decision Date: 02 October 1959
• Citation: 192 N.Y.S.2d 981,19 Misc.2d 619
• Parties: Jay MILLER, an infant, by Irving Miller, his Guardian ad Litem, and Irving Miller, individually, v. Harold HOLZHAUSER, individually and doing business under the firm name and style of Dixie Dew Riding Academy.
• Court: New York Supreme Court

Page 981

192 N.Y.S.2d 981

19 Misc.2d 619

Jay MILLER, an infant, by Irving Miller, his Guardian ad Litem, and Irving Miller, individually,

v.

Harold HOLZHAUSER, individually and doing business under the firm name and style of Dixie Dew Riding Academy.

Supreme Court, Special Term, Queens County, Part I.

Oct. 2, 1959.

Baar, Bennett & Fullen, New York City, for plaintiffs.

Holtzman, Sharf, Mackell & Hellenbrand, Kew Gardens, for defendant.

JAMES J. CRISONA, Justice.

Motion by defendant for an order extending his time to answer in an action by an infant plaintiff to recover damages for personal injuries he sustained on August 28, 1958, because of the negligence of the defendant, a riding academy owner, in furnishing a horse to the infant from which he was thrown. There is also a cause of action for breach of an alleged warranty of fitness for use. Infant plaintiff, 16 years old at the time of the accident, was kicked in the head after being thrown and suffered a 'compounded skull fracture of the fronto-parietal area.'

This action was started by the substituted service of process pursuant to an order dated February 25, 1959, permitting a copy of the summons and complaint to be left at the residence of the defendant, alleged to be at 105 Walling Street, Forest Hills, New York. Defendant swears, in an affidavit submitted in support of this motion, that he has not resided on Walling Street for a long time; that he resides at 124-03-152nd Avenue, South Ozone Park, New York, and has resided there since January 8, 1957. He represents that in the early part of April 1959 a summons and complaint and an order providing for substitute service were left at his present home. How they got there he does not know or, at least, does not say if he does know. Defendant maintains in the same affidavit that he has a good and meritorious defense to this action. The lawyer for the defendant in his affidavit says: 'After receipt of the summons and complaint in this matter, your deponent attempted to serve an answer upon the plaintiff, but the attorney for the plaintiff declined to accept said answer on the grounds that at that time there was an order issued assessing damages in this matter and the matter had been set down for inquest originally as of April, 1959 and adjourned to October 5, 1959.' The said lawyer does not say when he was retained by the defendant or when he received the summons and complaint from the defendant with instructions to serve an answer. He does not say how the matter was set down for inquest, whether before or after he received the summons and complaint, nor does he say how or when the inquest was adjourned to October 5, 1959. Most importantly, he does not explain why he waits from April 1959 until September 30, 1959, five days before the scheduled...