Opinion
July 8, 1957
Appeal from an order granting a motion to set aside and vacate the service of a summons. Service was made by delivering a copy of the summons to the deputy clerk of the Village of Ossining in the village hall while the village clerk was on vacation and not physically present in his municipal office. The deputy clerk accepted service on behalf of the village. Order reversed, with $10 costs and disbursements, and motion denied, without costs, with leave to respondent to answer within 10 days after service of a copy of the order hereon. Subdivision 5 of section 228 of the Civil Practice Act provides that, in an action against a village, service of the summons must be made by delivering a copy thereof to the mayor, clerk, or a trustee. Section 43 of the Village Law, as amended by chapters 646 and 668 of the Laws of 1955, provided that a deputy village clerk "shall have the same powers and duties as are prescribed for deputies by the provisions of section nine of the public officers law and such other powers and duties not inconsistent with his office as shall be determined by a resolution of the board of trustees." Section 9 Pub. Off. of the Public Officers Law provides that "If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his principal during the absence or inability to act of his principal, or during a vacancy in his principal's office." Subdivision 5 of section 228 of the Civil Practice Act should be read with section 43 of the Village Law and section 9 Pub. Off. of the Public Officers Law (see, e.g., Reiter v. Irving, 128 Misc. 13). In our opinion, when the clerk was absent on vacation, the deputy clerk had the power and duty to accept service of the summons in the action against the village. Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.