Opinion
October 19, 1906.
James A. Douglas, for the appellant.
S.J. Rosenblum, for the respondent.
This action was commenced against a foreign insurance company to recover for a loss covered by a policy of insurance. Process was served upon the Superintendent of Insurance at Albany on the 1st day of June, 1906, and service of process was duly admitted by him under section 30 of the Insurance Law (Laws of 1892, chap. 690). It appears that the Superintendent of Insurance sent the summons and complaint served on him to the defendant at its home office, which was duly received, but mislaid, and in consequence of that mistake appearance was not entered in time. The defendant claims that the service was irregular because it was not made personally upon the Superintendent of Insurance, but the Superintendent admitted on behalf of the defendant due service of the summons and complaint, and we think there can be no question but that the service was regular. The motion to set aside the judgment on account of irregular service should not have been granted. The relief asked for by the defendant was also to open its default and allow it to come in and defend, and as the court imposed terms as a condition for allowing the defendant to answer, it is quite apparent that the motion that was granted was to open the default and not to set aside the judgment upon the ground that the service of process was irregular. We think it was quite proper for the court to open the default under the circumstances. There was no question as to the solvency of the defendant and that the terms imposed by the court were sufficiently onerous.
It follows that the order appealed from opening the default and allowing the defendant to come in and defend the action should be affirmed, with ten dollars costs and disbursements.
O'BRIEN, P.J., CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements. Order filed.