November 25, 1969
IN THE MATTER OF THE ESTATE OF ABRAHAM J. ORENSTEIN, DECEASED
John D. Bennett, S.
In this probate proceeding the return of citation was November 19, 1969. An out-of-State infant allegedly 16 years of age or older executed an admission of service on October 31, 1969. The citation for such an infant must be served within 20 days before the return date of citation pursuant to SCPA 308.
Under SCPA 314, a person 16 years or over may admit service of process. However, the within admission of service was not made within the time required under SCPA 308, or 20 days before the return date of citation.
The court finds that SCPA 314 and CPLR 306 must be strictly construed especially where an infant is involved. There is no provision permitting an infant to waive timely service of process pursuant to SCPA 308. All that is authorized is for a person 16 years of age or over to admit service of process. Such an admission is the equivalent of an affidavit of service and does not waive any objections to the method or timeliness of service (1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 306.02). Any admission of service pursuant to SCPA 314 and CPLR 306 by an infant 16 years of age or over should state the date, time and place of service and the admission must be made within the time provided under SCPA 308. (Prof. Siegel's Commentary in McKinney's Cons. Laws of N. Y., Book 58A, to SCPA 314 states that CPLR 306 has no age qualifications. It may be that the findings of this court would apply to adults under the present statute.) Accordingly supplemental citation must issue.
© 1998 VersusLaw Inc.