
    Emma Olson, Plaintiff, v. Phebe Warren McConihe, Defendant.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Process---Service — Personal service in general—Mode and sufficiency of service — Improper and forcible access to defendant’s presence.
    Service of the summons and complaint in a civil action, made by a process server who gained access forcibly to the room where defendant was at the time after having obtained an entrance into defendant’s residence upon the pretext that she wanted to see one of the servants, naming her, is illegal and will be set aside.
    Motion by defendant to set aside the service of the summons and complaint on the ground that the process server resorted to trickery and device in order to serve same.
    The affidavits used on the motion show that on the evening of March 11, 1907, a female process server called at the servants’ entrance of defendant’s residence on East Fifty-first street, borough of Manhattan, rang the bell and the defendant’s cook on opening the door was told by this process server that she would like to see “ Kate,” meaning one of the upstairs maids; the cook invited this stranger into the house and asked her to sit down in the kitchen, and she would send for her. While the cook was telephoning upstairs for Kate the process server ran up the back stairs and rushed through the pantry, brushing aside the butler, and ran into the defendant’s dining-room, where the defendant and her family were dining, and threw upon the dining-room table a summons and complaint inclosed in an envelope. The plaintiff was formerly a cook in the defendant’s employ, and having fallen downstairs in defendant’s house brought this action for personal injuries, and was familiar with the names of defendant’s servants and her residence.
    Warren McConihe, for motion.
    Frank Herwig, opposed.
   MacLean, J.

It is. uncontradicted that the person who deposes to the service of the summons herein was admitted at the servants’ entrance to the house where defendant resided and asked to see one “ Kate,” presumably and apparently not this defendant. Such admission, under the circumstances, might not be said to carry the freedom of the house or to warrant forcible access to the dining-room upstairs for the purpose of service of process. Entry there and in the manner described was wrongful and the service improper. Mason v. Libbey, 1 Abb. N. C. 354. Application to set service aside granted, with ten dollars costs.

Application granted, with ten dollars costs.  