Taylor v. Granite State Provident Ass'n

• Decision Date: 17 January 1893
• Citation: 32 N.E. 992,136 N.Y. 343
• Parties: TAYLOR v. GRANITE STATE PROVIDENT ASS'N et al.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 343

32 N.E. 992

TAYLOR

v.GRANITE STATE PROVIDENT ASS'N et al.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from supreme court, general term, second department.

Action by Lillie S. Taylor against the Granite State Provident Association, impleaded, and others, to have a mortgage executed by plaintiff in favor of defendants declared void. There was a judgment for plaintiff, (20 N. Y. Supp. 135,) and defendant Granite State Provident Association moved to set aside service of summons and to vacate the judgment, and for a resettlement. From orders denying these motions, defendant appeals. Orders denying the motion to set aside service of summons, and to vacate the judgment, reversed. Order denying motion for resettlement dismissed.

Edward Hassett, for appellant.

J. V. W. Doty and Alpheus T. Bulkley, for respondent.

O'BRIEN, J.

The defendant moved to set aside the judgment entered against it in this action and the service of the summons, on the ground that no jurisdiction was obtained of the person of defendant, as no sufficient or legal service of process had ever been made upon it. The motion was denied, and the defendant then moved for a resettlement of the order, which was refused. Orders were entered upon both motions, from which an appeal was taken, and they were affirmed at general term. The order denying the motion for resettlement was so far a matter of discretion that it is not reviewable here; but the denial of the motion to vacate the judgment and set aside the service of the summons presents a question of law, and we have jurisdiction to review it. The defendant is a foreign corporation, organized and existing under the laws of the state of New Hampshire, and has never appointed an agent in this state for the purpose of receiving service of process. It appears from an affidavit attached to the summons that it was served upon one John M. Townsend, an attorney at law residing in Poughkeepsie, on the 30th of December, 1891. The cause of action arose, and the venue was laid, in Dutchess county. The defendant did not appear in the action, but other defendants residing in that county did, and upon their answers a trial was had, and judgment entered against all, including this defendant, against which the main relief was demanded. The action was one calling for equitable relief, and the judge who tried it at the special term found as a fact that the process was served upon a managing agent of the defendant, (upon what proof does not appear,) and he proceeded to render judgment against the defendant for the relief demanded in the plaintiff's complaint. There is also attached to the judgment roll an affidavit of the plaintiff's attorney in which it is stated, among other things, that the summons was served upon Townsend, and that he was at that time acting as the defendant's managing agent or cashier; that more than 20 days had elapsed since the service, and no appearance had been made. The moving papers contain the affidavit of the defendant's president, in which he swears that Townsend never was an...