Citation Numbers: 144 Misc. 886
Judges: Cuff
Filed Date: 8/19/1932
Status: Precedential
Modified Date: 1/12/2023
On June 18, 1932, an order for substituted service on the defendant Fanny Reisler was granted. On June twenty-third summons, complaint, affidavit and order for substituted service were left at the defendant’s apartment and on the same day copies were mailed to the defendant at her place of residence. The affidavit of service was filed in the county clerk’s office on June 30, 1932. The defendant Reisler claims that the filing of the affidavit of service was late; that it should have been filed within ten days of June eighteenth — the date of the granting of the order; that failure to file it within that time is fatal to the service. The affidavit of service was not filed within ten days of the granting of the order. Plaintiff argues that the rule does not require filing within that time. The rule follows (Rules Civ. Prac. rule 49): “ An order for substituted service, other than by publication, of a summons within the state on a resident, a domestic corporation or a joint stock or other unincorporated association, and the papers on which it was granted, must be filed and the service made within ten days after the order is granted; otherwise the order becomes inoperative. On filing proof of such service, the summons is deemed served and the same proceedings may be taken thereupon as if it had been served by publication pursuant to an order for that purpose.” A hasty reading of the rule does not reveal the requirement to file the affidavit of service within ten days, but an analysis of the language leads conclusively to that interpretation. The first sentence of the rule provides that the order and the papers
Returning to the first sentence, we have this requirement: “ The papers * * *, must be filed and the service made within ten days after the order is granted, * * *.” If the service must be made within ten days after the order is granted and if the service is not deemed made until the affidavit of service is filed, it is axiomatic that the service affidavit must be filed within ten days from the date of granting the order. I hold no brief for process dodgers. I would do all in my power to bring them out of their hiding places. This kind of service is statutory and practitioners availing themselves of it must minutely adhere to the rule. It is not an unreasonable requirement to ask that the papers — all of them ■— be filed within a definite period. It is only a case of learning the practice.
The view advanced by plaintiff that the ten-day requirement does not apply to the affidavit of service finds support in Dealers’ Lamber Corp. v. Stauffer (128 Misc. 358), but I cannot follow that case. The affidavit of service should have been filed within ten days of June 18, 1932. It was not filed until June 30, 1932. That omission was fatal. As the rule provides, the order became inoperative and the service depending upon it falls and will be set aside. The motion is granted.