Delisser v. New York, New Haven & Hartford Railroad , 1891 N.Y. Misc. LEXIS 2012 ( 1891 )

Freedman, J.

The summons having been served on the defendant, and no copy of the complaint having been served with it, the defendant appeared for the sole purpose of moving, and did move, to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by a statute; that a copy of the complaint was not delivered to the defendant with the copy of the summons served; and that there was not indorsed upon the said copy of the summons a reference to the statute giving said penalty, as required by section 1897 of the Code. The motion was founded on the copy of the summons served, and on an affidavit of one of the attorneys of the defendant, to the effect that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886. The defendant pursued the proper practice, and, if the affidavit had sufficiently stated the sources of the information of the attorney, and the grounds of his belief, the defendant would have been entitled to have the service of the summons set aside, as prayed for. But the sources of such information and the grounds of such belief were not disclosed. The affidavit contained nothing beyond the bare statement that the affiant was so informed and so believed. It therefore contained no competent evidence upon which the process of the court, which was regular upon its face, could be set aside; and the plaintiff was not called upon ■to deny under oath something which had not been sufficiently shown. Moreover, the order, as made, is too broad. It sets aside “the summons in this action, and all proceedings therein.” It is only the service of the summons that can be set aside upon the presentation of the proper proof. The order appealed from should be reversed, with $10 costs and disbursements, and the motion in the court below denied, with $10 costs, with leave to the defendant, upon payment of such costs, to renew the motion upon further proof.