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Leigh v. Lynton - 9 F.R.D. 28 (E.D.N.Y. 1949)

Rule:

Abode is defined as the place in which a person dwells. The intention is that the person against whom the notice is directed should then be living or have his home in the house where the summons and complaint are left.

Facts:

Defendants husband and wife (tenants) entered into a sublease with plaintiff sublessee, with the permission of the building owners, to rent out the remaining portion of defendants' lease for an apartment in California. The tenant husband then moved back to London, where he has lived ever since, while the tenant wife moved into another apartment located in New York. Thereafter, plaintiff sublessee filed an action against defendants for treble damages under the Housing and Rent Act of 1947, as amended, 50 U.S.C.S. app. § 1881 et seq. The summons and complaint for the husband was left with the wife at her New York dwelling. The tenant husband then filed a motion to dismiss the action or, in lieu thereof, to quash the return of the summons served upon him.

Issue:

Was the defendant husband properly served with summons when the same was left with the wife’s apartment?

Answer:

No.

Conclusion:

The court quashed the service of the summons and complaint made upon the husband. The court held that there had not been proper service under Fed. R. Civ. P. 4(d)(1), which allowed service to be made by leaving copies of the summons and complaint at a person's dwelling house of usual place of abode. The court found that the wife's apartment was not the husband's usual place of abode because the husband did not live there.

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