Callen v. De Koninck

23 A.D.2d 757, 258 N.Y.S.2d 627, 1965 N.Y. App. Div. LEXIS 4512

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1965
• Status: Published

Opinion

In a summary dispossess proceeding to recover possession of certain premises and arrears of rent, the petitioner landlord, by permission of this court, appeals from so much of an order of the Appellate Term of the Supreme Court, entered May 29, 1964, reversing a final order of the District Court, Nassau County, in the tenants’ favor, as denied recovery by the landlord of an in personam money judgment for rent arrears against the respondent, Albert C. De Koninck, one of the tenants who had defaulted in answering the petition after substituted service of the precept upon him pursuant to a court order. Order of Appellate Term, insofar as appealed from, reversed on the law, with $10 costs and disbursements, and money judgment directed to be entered in favor of the landlord and against the respondent tenant, Albert C. De Koninck, as prayed for in the petition. No questions of fact have been considered. We are of the opinion that the circumstances of the service of process against the respondent, Albert C. De Koninck, were sufficient to give the court in personam jurisdiction over him. We would agree that if one utilized merely the provisions of subdivision b of section 1421 of the former Civil Practice Act in order to effect service, the court would obtain only in rem jurisdiction over the property. Here, however, the petitioner obtained a court order to serve a resident who was evading service. The procedure followed was the same as the procedure prescribed by the other applicable provisions of the former statute (Civ. Prac. Act, §§ 230, 231) which conferred in personam jurisdiction. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.