Opinion
February, 1896.
H.B. Wesselman, for appellant.
W.R. Beach, for respondents.
These are appeals from orders denying motions to set aside the judgments entered herein on November 9, 1895, on the ground that they were irregularly and improperly entered, because a stay of proceedings was in force at the time of the entry of said judgments granted in the same actions on a motion instituted by order to show cause "to vacate and set aside the service of the summons" on the ground that J. Julian Held, upon whom the summons was served, was not an officer of the defendant company at the time of the service.
The summonses were served on November 2, 1895. On November 8, 1895, at six o'clock P.M., Justice BOTTY granted an order to show cause with a stay which was attempted to be served on November 9, 1895, at eight fifty-five o'clock A.M., at plaintiffs' attorney's office, by inclosing copies thereof, with affidavit upon which they were granted, in an envelope addressed to plaintiffs' attorney's office, and depositing them through a slit in the door of said attorney's office into his office.
Plaintiffs' attorney had then no letter box in his office, and his office was closed.
At nine-fifty A.M. of that day, plaintiffs' attorney, without having had any notice whatever of the stay as granted by the court, entered up judgments.
Under this statement of facts I hold that the service of the orders to show cause with the stay was not served in compliance with subdivision 3 of section 797 of the Code, and was not binding on the plaintiff or his attorney. Livingston v. New York El. R.R. Co., 33 N.Y. St. Repr. 818.
Considering in addition that defendant appears to have had no defense upon the merits of the causes of action and the motion to set aside the summons in which the stay had been given was afterwards, on a deliberate investigation by a referee, denied, and considering further that by vacating these judgments subsequent creditors would gain an undue advantage over these plaintiffs, it would be an injustice instead of justice to reverse these orders.
Orders appealed from affirmed, with costs.
VAN WYCK, Ch. J., and McCARTHY, J., concur.
Orders affirmed, with costs.