At. Pac. Tel. Co. v. Balt. O.R.R. Co.

Full title: THE ATLANTIC PACIFIC TELEGRAPH COMPANY, Respondent, v . THE BALTIMORE OHIO…

Court: Court of Appeals of the State of New York

Date published: Jan 17, 1882

87 N.Y. 355 (N.Y. 1882)

Opinion

Argued December 6, 1881

Decided January 17, 1882

William Dorsheimer for appellant.

Everett P. Wheeler for respondent.

RAPALLO, J.

The appeal from that part of the order which directs that an attachment issue against John W. Garrett should be dismissed. No adjudication upon the subject of the alleged contempt has been made, and the order is simply that Mr. Garrett be brought into court to answer the charge. This order affects no substantial right of the Baltimore Ohio Railroad Company, and it cannot, at this stage of the matter, appear that any such right will be affected by the action of the court.

So far as the personal rights of Mr. Garrett are concerned, they are not before us. He has not appealed from the order, and therefore the question does not arise, whether he could appeal from it in the present condition of the proceeding.

So much of the order appealed from, as relates to the motion to set aside the service of the summons, should be affirmed, with costs. The interesting questions which have been discussed in relation to the jurisdiction of the court over the subject-matter of the action may have been involved in the motion for the injunction, but they do not properly arise on the motion to set aside the service of the summons. The legality and regularity of the service are the only points to be considered. Perhaps in a case free from doubt, the court might dismiss the whole proceeding on a motion to set aside the service of the summons, but the regular mode of raising the questions discussed, is by demurrer, or answer, and we do not now pass upon them.

In this case the service was made in the manner authorized by section 432, subdivision 1, of the Code of Civil Procedure.

The allegation of fraud in obtaining the service was not sustained by the General Term upon the facts; and we should not interfere with its decision upon the facts, even if we considered that the allegations were sufficient in law to invalidate the service.

The respondent should have but one bill of costs upon this appeal.

All concur.

Ordered accordingly.