Abo v. Panish

135 Misc. 792, 239 N.Y.S. 669, 1930 N.Y. Misc. LEXIS 1861, 1930 N.Y. App. Div. LEXIS 14026

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 18, 1930
• Status: Published

Opinion

Per Curiam.

Upon the sole ground that proof of service of the summons and complaint upon the defendant, respondent, was filed a day after the statutory limitation of three days (Mun. Ct. Code, § 22, subd. 3), although the summons and complaint with proof of service on the codefendant had been duly filed, the justice below vacated the default judgment entered against the respond-an!, dismissed the complaint and restored the moneys collected under the execution by the marshal. As the action was commenced by the service of the summons (Mun. Ct. Code, § 18), the failure to file proof of service on respondent within the three days was not a jurisdictional defect, and it appearing that the respondent was in no manner prejudiced by the delay in filing it was error to grant respondent’s motion.

Judgment and order reversed, motion denied and default judgment reinstated, with ten dollars costs. Appeal from order of November 19, 1929, dismissed.

All concur; present, Bijur, Peters and Frankenthaler, JJ.