Bank of New York v. Legget

267 A.D. 875, 46 N.Y.S.2d 465, 1944 N.Y. App. Div. LEXIS 5250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1944
• Status: Published

Opinion

Appeal by defendant from an order denying his motion to vacate a money judgment entered against him by default in an action in which jurisdiction over him was claimed to have been obtained by service of process without the State pursuant to an order of the court. Order reversed upon the law, with ten dollars costs and disbursements, and the motion granted, without costs. The action, which was for a declaratory judgment, also sought a money judgment. In the latter aspect it unquestionably was an action in personam. The defendant was served without the State, pursuant to an order of the court. No jurisdiction in rem existed or was obtained by attachment or otherwise. The court, therefore, was without jurisdiction to enter a money judgment. (Karehman v. Karehman, 224 App. Div. 773; Carmody, New York Pleading and Practice, Vol. 2, § 700; Pennoyer v. Neff, 95 U. S. 714.) The amendments of section 232 of the Civil Practice Act have placed a resident and nonresident on the same plane, so far as concerns jurisdiction in personam, and seem to have made inappropriate assimilating the rule, in Continental National Bank v. Thurber (74 Hun 632, affd. on opinion below 143 N. Y. 648), relating to substituted service of process, to service without the State pursuant to an order, which was permitted under prior language of section 232 of the Civil Practice Act. (Carmody’s New York Practice, p. 118 of 1923 and 1924 editions; Ninth Annual Report, Judicial Council, p. 339 et seq.) Close, P. J., Carswell, Johnston, Lewis and Aldrich, JJ., concur. [See 268 App. Div. 779.]