Deyoe v. Brann

Appeal from an order of a Special Term, Supreme Court, Albany County. Service of the summons and complaint in this negligence action in Saratoga was made on the defendant on August 3, 1960 in New York City. The person making the service described himself as being “ associated in business with defendant ”. The insurance company covering defendant seems not to have received the summons and complaint; or at any rate not to have been certain that the assured had been served. The affidavit of service made on August 3 was not sworn to until November 28, 1960, and shortly after this date, December 15, *1001the attorneys for defendant wrote to plaintiffs’ attorneys stating that they had been informed service was alleged to have been made on defendant and since “ We have no pleadings served on Mr. Brann ” asking for a copy of any papers alleged to have been served on him. Instead of answering this letter plaintiffs’ attorneys entered a default judgment. Although this may have been inadvertent because the letter of December 15 was overlooked, the decision to open the default was well within the discretion of Special Term and the discretion soundly exercised. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.