Farrington v. Muchmore
New York Supreme Court
This was a motion to set aside an order for substituted service of the summons made under sections 435 and 436 of the Code of Civil Procedure, for irregularity, and also for being unauthorized by law. The service was by mailing and posting on the door of defendant’s residence.
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This was a motion to set aside an order for substituted service of the summons made under sections 435 and 436 of the Code of Civil Procedure, for irregularity, and also for being unauthorized by law. The service was by mailing and posting on the door of defendant’s residence. In the affidavits and order for substituted service the name of the plaintiff is given as “ Gilson F. Farrington ”, which is his true name, but in the summons the plaintiff is named “ George F.” Farrington. The defendant only appears specially for the purpose of the motion.
1Opinion of the Court
Gaynor, J.:
As is well understood, the statute provisions, for substituted service have to be strictly followed. The misnomer of the plaintiff in the summons here is an irregularity. It could not be corrected ex parte (Farnham v. Hildreth, 32 Barb. 277; Stuyvesant v. Weil, 41 App. Div. 551). And it is a substantial one, for if the plaintiff should allow judgment by default, the judgment roll would not on its face show an estoppel to another action for the same cause by the plaintiff, his assigns or administrators, in his true name. Evidence dehors would be necessary to show it to be such. It…
2Cases cited3 opinions
- Bank of Havana v. . MageeNew York Court of Appeals · 1859
- Farnham v. HildrethNew York Supreme Court · 1860
- Stuyvesant v. WeilAppellate Division of the Supreme Court of the State of New York · 1899
3Cited by2 opinions
- Farrington v. MuchmoreAppellate Division of the Supreme Court of the State of New York · 1900
- Farrington v. MuchmoreAppellate Division of the Supreme Court of the State of New York · 1900