In my opinion the service of process was unconditional, effective and complete. First, the process server “ advised her that I had a citation to present to her that was returnable in Rensselaer County Surrogate’s Court on the 9th day of January, that there was pending probate proceeding in her sister’s Will. ’ ’ Secondly, the petitioner refused to receive the citation. Thirdly, in an effort to be accommodating and kind to the elderly woman, he left the citation on her bed, sought an envelope, returned to her bedside and the following took place: “ I asked Mrs. Stowell if she would tell me her son’s *327address so that I could write it on the envelope. With this she said to me ‘‘ told you I didn’t want to be bothered with this. Will you please get out? ’ With that I expressed my apologies for upsetting her. I said that I had to leave the citation with her anyhow, and there was a night table or a night stand on the opposite side of the bed from where I was standing. I reached across her, placed the envelope containing the copy of the Will and the citation on this night stand, took my hat and empty folder and left. ’ ’
The majority opinion cites cases which show that the object of service is to give notice to the party in order that he may take steps to protect his rights. This object was clearly accomplished by the service herein. Reference is made to the physical condition of the petitioner but a reading of the record compels the conclusion that at the particular time and place the petitioner was fully cognizant of the business at hand and wanted her son to look after her business. Prior to the end of December, 1960, the citation was delivered to the son of the petitioner — the return date of the citation was January 9, 1961—who then, because of inadvertence or neglect, failed to protect his mother’s interest until too late.. He retained a lawyer who appeared on behalf of petitioner on January 9, 1961, but the decree had already been signed. The Surrogate in his wisdom and judgment provided: “ Ordered that the petition be and it hereby is denied, without prejudice to a renewal thereof upon the proper showing of facts entitling the petitioner to relief, within twenty days of service of a copy of this order with notice of entry ’ ’.
Process was in every respect completed and perfected. The young man who made service, because of his desire to be accommodating and helpful to the elderly woman, should not now be charged with failure to effectuate service.
The order should be affirmed.
Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur in Per Curiam opinion; Herlihy, J., dissents in opinion, and votes to affirm.
Order reversed, on the law and the facts, and the motion to vacate the decree of probate granted, with costs to petitioner payable from the estate.