Skidmore v. Green

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Tanner, Sillcocks & Friend, of New York City, for plaintiff
• Citation: Skidmore v. Green, 33 F.Supp. 529 (S.D. N.Y. 1940)
• Decision Date: 15 April 1940
• Parties: SKIDMORE v. GREEN et al.

33 F. Supp. 529

SKIDMORE v. GREEN et al.

District Court, S. D. New York.

April 15, 1940.

Tanner, Sillcocks & Friend, of New York City, for plaintiff.

Barber, Matters & Gay, of New York City, for defendant Whittaker, appearing specially on this motion.

MANDELBAUM, District Judge.

This is a motion to dismiss the complaint against defendant Samuel Whittaker, on the ground that this court has no jurisdiction over him. Allegedly, process was not properly served, pursuant to Rule 4 (d) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, since the summons and complaint were not left at defendant Whittaker's usual place of abode and he is no longer a resident of the State of New York.

Plaintiff, a resident of West Virginia, seeks to recover damages for injuries resulting from an accident on October 16, 1939, near Hillard, Florida, in which the automobiles of defendants Green, who are residents of Queens County, New York, and defendant Whittaker collided with that of the plaintiff. So far as they are relevant, the facts with respect to the service of process which this motion seeks to upset are as follows: Defendant Whittaker is a retired New York City Policeman who lives upon a pension and spends most of his time travelling about the country in a car and trailer. Until the fall of 1937, he admits that he lived in New York State. At that time, he bought the trailer and went to Florida. He spent the winter there and returned to New York in the summer of 1938. He again went to Florida in the fall and did not return to New York until the summer of 1939. In the fall of 1939, he set out for Florida and has not since returned to New York State. In each instance, these trips were very leisurely and defendant would spend weeks at various stop-over points en route.

During all this time, both his car and the trailer have New York license plates and in the application for the license, the address given by defendant was 109 Hunter Street, Kingston, New York, a house owned by his brother. On October 6, 1939, however, he applied for a 1940 license from the State of South Carolina in which, although he gave an address in Camden, South Carolina, he stated that he was a resident of New York.

The summons and complaint were delivered to Whittaker's sister-in-law at the Kingston, New York, address and it is admitted that she forwarded them to him in Florida. Both she and her husband, defendant's brother, have made affidavits in which they...