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Keywords

plaintiffdefendantmotionwill

defendantaffidavitmotion

Related Cases

Rawstorne v. Maguire, 265 N.Y. 204, 192 N.E. 294

Facts

On August 30, 1933, the plaintiff obtained an order for substituted service of the summons on the defendant, who was alleged to reside at the Hotel Vanderbilt in New York. The summons was served on September 2, 1933, by leaving a copy with a person of proper age at the hotel. The defendant, who claimed to be a resident of Virginia, moved to vacate the order for substituted service, arguing that he was not a resident of New York at the time of service. The Appellate Division reversed the Special Term's order, finding that the defendant was not domiciled or physically present in New York when the service was made.

‘The affidavits upon which the order was made allege that the defendant resides at the Hotel Vanderbilt in the city of New York.’

Issue

Was the order of Special Term denying the motion to vacate the order for the service of the summons by substituted service upon the defendant erroneous?

‘Was the order of Special Term denying the motion to vacate the order for the service of the summons by substituted service upon the defendant and to set aside and vacate the service of the summons made thereunder upon the motion that the defendant was not ‘residing within the State of New York’ within the meaning of Section 230 of the Civil Practice Act erroneous?’

Rule

Section 230 of the Civil Practice Act provides for substituted service upon a ‘natural person residing within the state.’ The court must determine whether the defendant was ‘residing within the State of New York’ at the time of service.

‘Section 230 of the Civil Practice Act provides for substituted service upon a ‘natural person residing within the state.’’

Analysis

The court analyzed whether the defendant's temporary presence at the Hotel Vanderbilt constituted residency under Section 230. It concluded that the defendant was not domiciled in New York and had no permanent place of abode there. The court emphasized that mere physical presence without the intention to remain does not establish residency for the purposes of substituted service.

‘The court emphasized that mere physical presence without the intention to remain does not establish residency for the purposes of substituted service.’

Conclusion

The court affirmed the Appellate Division's order, concluding that the service of summons was invalid as the defendant was not a resident of New York at the time of service.

‘The order should be affirmed, with costs, and the first question certified answered in the affirmative.’

Who won?

William G. Maguire prevailed in the case because the court found that he was not a resident of New York when the summons was served, thus invalidating the substituted service.

‘The Appellate Division correctly held that the service should in this case be vacated.’

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