Antalek v. Elliott

Appellate Division of the Supreme Court of New York

Antalek v. Elliott

26 A.D.2d 716, 271 N.Y.S.2d 746, 1966 N.Y. App. Div. LEXIS 3770

Appellate Division of the Supreme Court of the State of New York·Decided July 1, 1966·Published·Cited by 2 cases

Opinion

Memorandum by the Court. Appeal from an order of the Supreme Court at Special Term, Schenectady County, denying defendant’s motion that he be relieved from the terms of a default judgment, on the ground that purported-substituted service of the summons pursuant to order granted July 9, 1963. was not made until August 12, 1963, and thus not “ within twenty days ” (Civ. Prac. Act, § 231) whereby, according to the section cited, the order became “ inoperative ”. These facts are not disputed. That a jurisdictional ground other than this was that urged on the motion to relieve (CPLR 5015, subd. 4) does not, of course, foreclose appellant’s additional jurisdictional objection here, even if it be considered that the latter was not before the Special Term by reason of the reference in the moving affidavit to the critical dates involved. Order reversed, on the law and the facts, and motion granted, without costs. Gibson, P. J., Herlihy, Taylor, Aulisi and Staley, Jr., JJ., concur.

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Memorandum by the Court. Appeal from an order of the Supreme Court at Special Term, Schenectady County, denying defendant’s motion that he be relieved from the terms of a default judgment, on the ground that purported-substituted service of the summons pursuant to order granted July 9, 1963. was not made until August 12, 1963, and thus not “ within twenty days ” (Civ. Prac. Act, § 231) whereby, according to the section cited, the order became “ inoperative ”. These facts are not disputed. That a jurisdictional ground other than this was that urged on the motion to relieve (CPLR 5015, subd. 4) does not, of course, foreclose appellant’s additional jurisdictional objection here, even if it be considered that the latter was not before the Special Term by reason of the reference in the moving affidavit to the critical dates involved. Order reversed, on the law and the facts, and motion granted, without costs. Gibson, P. J., Herlihy, Taylor, Aulisi and Staley, Jr., JJ., concur.

Antalek v. Elliott, 26 A.D.2d 716, 271 N.Y.S.2d 746, 1966 N.Y. App. Div. LEXIS 3770 (N.Y. Ct. App. 1966).

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