#### Charles M. Hallock, Plaintiff, *v.*William Dillon, Moses D. Kibbie and John T. Sullivan, Defendants.

(Supreme Court, Allegany Trial Term,

January, 1912.)

Justices of the peace — Jurisdiction — Trespass — Process — Liability of undertakings — In general.

Pleading—-Complaint — Statement of cause of action in general — Defenses in general — Demurrer.

Where, in an action brought in justice’s court for trespass on land, the defendant with his answer pleading title to the land by user delivers to the justice an undertaking, under section 2952 of the Code of Civil Procedure, that if the plaintiff within twenty *293days thereafter deposits with the justice a summons and complaint in a new action for the same cause, in the proper court, the defendant will within twenty days after the deposit of such summons and complaint give a written admission of service thereof, the defendant has all of the twenty days in which to give the written admission of service, that being' tantamount to personal service as of the day when the admission was given, and, from the date of an admission of service given within twenty days after the deposit, the defendant is entitled to twenty full days in which to answer.

A complaint which sets forth facts constituting a cause of action and facts which constitute a valid defense thereto is demurrable.

Demurrer by defendants .to the plaintiff’s complaint.

George H. Blackman, for plaintiff.

Francis B. O’Connor, for defendants.

Wheeler, J.

On the 1st day of June, 1911, the plaintiff in this action commenced an action in justice’s court, before Frank M. Leonard, a justice of the peace of the town of Wellsville, 2ST. Y., against the above named defendants William Dillon and Hoses D. Bobbie. The summons was made returnable on the 12th day of June, 1911, at ten o’clock an the forenoon, and was returned to the justice personally served on both defendants.

On the 12th day of June, 1911, the return day of the' summons, the plaintiff appeared in person and by his attorney, George H. Blackman, and filed with the justice a written complaint alleging trespass on land. On the 17th day of June, 1911, the defendants appeared in person and by their attorney, Francis B. O’Connor, and filed separate answers, each pleading title to land by user; and each defendant’s answer was countersigned by the justice - of the peace and delivered to plaintiff’s attorney, and the defendants delivered to the justice an undertaking which was approved by him and the action, was discontinued by the justice of the peace, and the plaintiff was required to pay his own costs. The condition of the undertaking filed with the justice of the peace by the defendants is: *“*That- if the plaintiff above named, within twenty days after the delivery *294of the answer in the above entitled action and this undertaking, to the Justice before whom this action is pending, deposits with said Justice a summons and complaint in a new action for the same cause to be brought in the proper court, the defendants will, within twenty days after the deposit of such summons and complaint, give a written admission of the service thereof.”

On the 21st day of June, 1911, the plaintiff deposited with Frank M. Leonard, the justice of the peace before whom the other action was pending, a summons and complaint in a new action in the Supreme Court against the defendants William Dillon and Moses D. Kibbie, for the same cause of action alleged before the justice. On the 8th day of July, 1911, Frank M. Leonard, the justice of the peace before whom the action in justice’s court was commenced and discontinued, left with the plaintiff’s attorney, at his office, a purported admission of service of a summons and complaint, of which the following is a copy:

“ State op Hew York,

“ Supreme Court, County of Allegany.

“ Charles M. Hallock, Plaintiff, vs. I

“William Dillon & Moses D. f Kibbie, Defendants.

“ I hereby admit due and legal personal service of the summons and complaint, in the above entitled action, on me this 8th day of July, 1911, at Wellsville, H. Y., by delivering to and leaving with me a copy thereof.

“ Wm. Dillon, Defendant.

“ I hereby admit due and legal personal service of the summons and complaint, in the above entitled action, on me this 8th day of July, 1911, at Wellsville, H. Y., by delivering to and leaving with me a copy thereof.

“ Moses D. Kibbie, Defendant.”

The attorney for the plaintiff stated to said Leonard that the admission of service was not such an admission as was *295required by statute, and that it was refused; but Leonard left the paper on the desk of the plaintiff’s attorney. The paper was immediately returned to Frank M. Leonard, by mail, with the following indorsement upon it:

*“*To Frank M. Leonard, *Justice of the Peace:*

*“*I herewith return to you the within admission of service of the summons and complaint, in the within entitled action, for the reason that the admission of service does not comply with the provisions of section 2951 to section 2958, both inclusive, of the Code of Civil Procedure, in this, the summons and complaint were deposited with Frank M. Leonard,the justice of the peace before whom the action was brought in Justice Court, on the 21st day of June, 1911, and the admission of service of the summons and complaint, is, that the service was made on the 8th day of July, 1911.

“ George H. Blackman, *Attorney for Plaintiff.*

“ Dated, July 10, 1911.”

The plaintiff thereupon began this action, upon the undertaking given by the defendants when the cause was removed from the jurisdiction of the justice of the peace.

All the facts above recited are set forth in the plaintiff’s complaint.

The defendants demur on the ground the complaint fails to state a cause of action.

The contention of.the respective parties, stated in a nutshell, is this:

The plaintiff contends that the defendants had no right to give an admission of service as of the eighth day of July, but should have admitted service generally, and that the admission then related back, as of the time the summons and complaint were deposited with Justice Leonard on the 23d day .of June, 1911. The argument made is that there must be a strict compliance with the requirements of section 2952 of the Code of Civil Procedure, and that the admission of service given is not such compliance, and, therefore, the plaintiff- had the right to enforce the penalty of the undertaking given.

Section 2952 of the Code of Civil Procedure reads: *“*In *296the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days thereafter, deposits with the justice' a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service *thereof.”*

There is a clear distinction, the *deposit*of a summons and complaint with the justice,, and the *admission of service*thereof.

The deposit of the summons and complaint does not commence the action, or confer jurisdiction on the court over the parties defendant. It is only the admission of service which gives the court jurisdiction in the new action brought in the higher court. It is the evident intent of the Code to provide'a method for the voluntary appearance of the defendants in the new action, and the undertaking given provides they will so appear by giving “ a written admission of the service thereof *” (i.*e., of the summons and complaint) " *within twenty days after the*depositThe defendants had all of the twenty days in which to do this. There is not a thing in' the section saying such admission shall be as of the day of deposit. On the contrary, we are of the opinion that the .fair import and .construction of the section is that the admission of service required is simply tantamount to personal service as of the day when the admission is given, and if made within twenty days after deposit is timely, and that the defendants would have full twenty days from the date of such admission service in which to plead in defense.

This view of the matter necessitates that the demurrer be sustained.

Where.the complaint sets forth facts constituting a cause of action and also facts which constitute a valid defense to ■ the action, the whole must be considered, and a demurrer will, be sustained. Calvo v. Davies, 73 N. Y. 211.

■ Demurrer sustained, with costs, with leave of plaintiff to amend upon the payment of said costs.