Creative Woodworking Co. v. Bohn

Civil Court of the City of New York

Creative Woodworking Co. v. Bohn

44 Misc. 2d 369, 253 N.Y.S.2d 711, 1964 N.Y. Misc. LEXIS 1432

CourtCivil Court of the City of New York

DecidedSeptember 23, 1964

StatusPublished

Cited by3 cases

This text of 44 Misc. 2d 369 (Creative Woodworking Co. v. Bohn) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Creative Woodworking Co. v. Bohn, 44 Misc. 2d 369, 253 N.Y.S.2d 711, 1964 N.Y. Misc. LEXIS 1432 (N.Y. Super. Ct. 1964).

Pincite

Opinion

Louis I. Kaplan, J.

Paragraph (1) of subdivision (a) of section 902 of the New York City Civil Court Act provides that an indorsed complaint may be served only when the summons is served by personal delivery to the defendant in New York City and the cause of action is for money only. Service according to CPLR 308 (subd. 3) does not constitute personal delivery to the defendant. Therefore a formal complaint is required. However, the service of an indorsed complaint herein is not a jurisdictional defect but merely an amendable irregularity (see Professor Siegel’s commentary, McKinney’s Cons. Laws of N. Y, Book 29A, CCA, § 902, 1964 Supp., p. 21).

Babylon Milk & Cream Co. v. Rosenbush (227 F. Supp. 471) is not binding on this court and will not be followed.

Paskus, Gordon & Hyman v. Peck (41 Misc 2d 1004) is consistent with this decision since in that case, plaintiff served a summons without any complaint.

Accordingly, the motion to dismiss the complaint is granted with leave to the plaintiff to move to serve a formal complaint.

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Louis I. Kaplan, J.

Paragraph (1) of subdivision (a) of section 902 of the New York City Civil Court Act provides that an indorsed complaint may be served only when the summons is served by personal delivery to the defendant in New York City and the cause of action is for money only. Service according to CPLR 308 (subd. 3) does not constitute personal delivery to the defendant. Therefore a formal complaint is required. However, the service of an indorsed complaint herein is not a jurisdictional defect but merely an amendable irregularity (see Professor Siegel’s commentary, McKinney’s Cons. Laws of N. Y, Book 29A, CCA, § 902, 1964 Supp., p. 21).

Babylon Milk & Cream Co. v. Rosenbush (227 F. Supp. 471) is not binding on this court and will not be followed.

Paskus, Gordon & Hyman v. Peck (41 Misc 2d 1004) is consistent with this decision since in that case, plaintiff served a summons without any complaint.

Accordingly, the motion to dismiss the complaint is granted with leave to the plaintiff to move to serve a formal complaint.

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Bluebook (online)

44 Misc. 2d 369, 253 N.Y.S.2d 711, 1964 N.Y. Misc. LEXIS 1432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creative-woodworking-co-v-bohn-nycivct-1964.

Opinion

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