Sappia v. Lauro Lines , 130 F. Supp. 810 ( 1955 )

130 F. Supp. 810 (1955)

Loretta SAPPIA and Silvio Sappia, Plaintiffs,
v.
LAURO LINES, Achille Lauro, Home Lines Agency Inc., and Cosmopolitan Shipping Company, Inc., Defendants.

United States District Court S. D. New York.

March 28, 1955.

Baker, Garber & Chazen, Hoboken, N. J., for plaintiffs.

Gray & Wythe, New York City, for Achille Lauro.

SUGARMAN, District Judge.

In an action to recover damages for personal injuries allegedly sustained by Loretta Sappio while aboard the S.S. Roma on the high seas and to recover her husband's consequential damages, the defendant Achille Lauro moves to vacate the service of process attempted to be made on him by delivery of a copy of the summons and complaint to Lon Hudson, Treasurer of Home Lines Agency, Inc., at the latter's office in New York City.

In support of the motion, Lon Hudson's affidavit is submitted in which he denies that he was or is authorized to accept service of process for movant in this country. Lauro is the operator of the S.S. Roma. Home Lines Agency, Inc., is Lauro's agent for the sale of passage tickets for the vessel.

The motion must be granted since plaintiff has not proven that the movant's agent was in fact authorized by appointment or by law to receive service of process.^[1]

Plaintiff's attempted service under New York Civil Practice Act, § 229-b was also abortive despite F.R.Civ.P. 4(d) (7), 28 U.S.C.A. Only "a United States marshal * * * his deputy, or * * some person specially appointed by the court for that purpose" may serve process.^[2]

The file does not disclose nor does plaintiff contend that plaintiff's counsel, who attempted service under the New York practice, was specially appointed to make that service.^[3]

The foregoing is not to be construed as an indication either way of the validity of service attempted under New York C.P.A. § 229-b by one properly authorized to effect it under F.R.Civ.P. 4(c).^[4]

The motion to quash the service of the summons and complaint herein on defendant Achille Lauro is granted and it is so ordered.

NOTES

[1] Hardy v. O'Daniel, D.C.D.C., 16 F.R.D. 355.

[2] F.R.Civ.P. 4(c).

[3] Rubinstein v. Gray, D.C.S.D.N.Y., 130 F. Supp. 300.

[4] See "Service of Summons on Non-Resident Natural Persons Doing Business in New York", XV St. John's Law Rev., No. 1, p. 1, et seq.