Mygatt v. Coe

• Decision Date: 07 September 1899
• Citation: 63 N.J.L. 510,44 A. 198
• Parties: MYGATT et al. v. COE et al.
• Court: New Jersey Supreme Court

44 A. 198

63 N.J.L. 510

MYGATT et al.

v. COE et al.

Supreme Court of New Jersey.

Sept. 7, 1899.

(Syllabus by the Court.)

Action by Sarah M. Mygatt and others against Edward Prime Coe and others. Rule to show cause why service of summons should not be set aside. Rule made absolute.

Argued February term, 1899, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

Willard P. Voorhees, for plaintiffs.

McGee, Bedle & Bedle, for defendants.

GUMMERE, J. This is an application to set aside the service of a summons upon the defendant Edward Prime Coe, as not having been made in conformity to the provision of the statute regulating the subject. Section 49 of our practice act provides that a copy of the writ "shall be served upon the defendant in person, or left at his dwelling house or usual place of abode." The service in the present case was made by exhibiting the writ, and delivering a copy thereof, on November 28, 1898, to one Smullen, who was an employe of the defendant. The question in dispute is whether the place of delivery was at the dwelling house or usual place of abode of the defendant. The testimony taken on this rule shows that the defendant, for a period of several years prior to 1896, resided at the town of Englewood, in this state; that during that year, having rented his house, be removed to the home of his stepmother, in the adjoining borough of Englewood Cliffs, and continued to reside there until October 1, 1898; that on the latter date he removed, with his family, to the city of New York, and took up his abode in an apartment house in that city, where he has remained until the present time; that when he removed to New York he left his horses at Englewood Cliffs, at the stables upon his stepmother's premises, in charge of Smullen, who was also left in charge of the house, it being unoccupied after the defendant's departure; that the house was still unoccupied at the time of the service of the writ; and that the service was made upon Smullen while he was upon the premises.

It is argued, on behalf of the plaintiffs, that there is nothing in the testimony which justifies the conclusion that the defendant by removing to New York with his family, Intended to abandon, or did in fact abandon, his residence at Englewood, and that this being so, a service at that residence was valid even if the house itself was closed. But, assuming the fact to be as argued, we think that the contention based upon it cannot be supported. The statute does not direct...