May 11, 1940.
Regan Barrett [ Chas. R. Barrett and Joseph F. Butler of counsel], for the plaintiff.
Adolph F. Bruenner, for the defendant Gertrude Davis, appearing specially.
Upon the foregoing papers this motion to vacate the service of the summons is granted. Section 52 Veh. Traf. of the Vehicle and Traffic Law provides for service of a summons on the Secretary of State in those cases "growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such a public highway or in which such motor vehicle * * * may be involved while being operated on such a highway." In the instant case the automobile of the defendant Davis was not being operated upon a public highway at the time of the accident and she, therefore, may not be served with process pursuant to the terms of section 52 Veh. Traf. of the Vehicle and Traffic Law. The relief afforded by the above statute is in derogation of the common law and must, therefore, be strictly construed.