Moffett v. Logan ( 1958 )

Francis X. Conlon, J.

The defendant moves to vacate the service of the summons and complaint on the ground of improper service. By cross motion the plaintiff moves to consolidate an action pending in Putnam County, instituted by the service of a summons without a complaint, arising out of the same accident on which plaintiff’s case is based and between the same parties.

It is conceded that the defendant Logan was not personally served with the summons and complaint. However, it is argued that the defendant, by requesting an extension of time, has appeared generally and waived any claim of defective service.

On or about October 4, 1958, the summons and complaint were purportedly served on the defendant by leaving the same with his mother at his residence in Westchester County. On October 11, 1958, plaintiff’s attorney received a stipulation from the attorneys for the defendant’s insurance carrier extending the time to answer or move with relation to the complaint until October 21, 1958. In this connection it is noted that the answer in the normal process would not be due until October 24, 1958. On October 21, 1958, the attorneys in a telephone conversation discussed the improper service and extended the time within which the defendant could traverse the service and that plaintiff would not question that such motion was not made before October 21, 1958.

On October 25, 1958, the plaintiff was served with a summons without a complaint arising out of the same accident. The attorney for plaintiff’s insurance carrier has appeared in this action for her.

Although at the time of the original stipulation entered into by the attorneys there was no sufficient indication that the defendant was appearing specially, on October 21, 1958, before the time to answer had elapsed, the attorney for the plaintiff knew of that situation. Accordingly, the extension of time was incidental to the special appearance and did not waive the defect (Thompson v. Mundheim, 180 Misc. 1002, affd. 266 App. Div. 1001). Therefore the motion is granted. On this determination the cross motion becomes academic.

Settle order.