Van Zandt v. Van Zandt

O’Brien, J.

Section 479 of the Code provides that if a copy of the complaint is not delivered to a defendant at the time of the delivery of a copy of the summons to him, either within or without the state, his attorney may, at any time within 20 days after the service of the summons is complete, serve upon plaintiff’s attorney a written demand of a copy of the cdmplaint, which must be served within 20 days thereafter. The case of Skinner v. Skinner, 9 N. Y. Supp. 60, decided by Mr. Justice Andrews, holds that where the summons and a copy of the complaint were served without the state upon the defendant personally, the defendant was not entitled to demand service of a copy of the complaint. In the case of Mackay v. Laidlaw, 13 How. Pr. 129, (decided under section 130 of the Old Code,) it was held, under the language of that section, that the only case in which the Code expressly authorizes a defendant to demand a copy of the complaint, and gives him 20 days after to answer it, is where there has been personal service of the summons, but no copy of the complaint has been served with it. This old section 130 was amended in 1877, and subsequently by the adoption of the new Code. It seems to me that this case of Mackay v. Laidlaw is inconsistent with the language of the present section 479. The view of Mr. Justice Andrews is undoubtedly correct, that where a copy of the complaint is served upon the defendant, within or without the state, he is not entitled, upon appearing, to demand service of another copy. Where, however, the summons is served by publication, and a copy of the complaint is not served, within or without the state, and the defendant appears before the service was completed, he is entitled to receive a copy of the complaint; otherwise, no provision is made for a person, not personally served, who appears, and demands a copy of the complaint, by which he can obtain a copy of the same. However, so far as the motion is concerned, the affidavit of the former attorney of the plaintiff shows that the notice of appearance served on behalf of the defendant, with a written demand therein incorporated, requiring service of a copy of the complaint, were accepted by him. The defendant’s time to plead wa's thus fixed by stipulation between the attorneys, and I do not see how the present attorney can repudiate this action. It was competent for the attorneys to stipulate, and it necessarily superseded, so far as inconsistent therewith, the service of the summons and complaint by publication. As a question of practice, therefore, I am inclined to accept the defendant’s view, but for the purposes of this motion the stipulation made between the attorneys is conclusive upon the plaintiff; and the return of the demurrer, upon the ground that it was not served in time, cannot be upheld. The motion, therefore, to compel plaintiff to accept the pleading served and returned is granted. Ho costs.