Devonia Discount Corp. v. Bianchi

241 A.D. 838

Opinion

Order of the City Court of Mount Vernon dated January 26, 1934, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. No general appearance by the defendant had been effected in this action; no summons had been served and, therefore, the court had no jurisdiction over the person of the defendant. The court did have jurisdiction in rem with respect to the chattel by reason of the seizure, but the need for making an order with respect to custody and possession had been obviated by the reclaiming and rebonding of the same by the defendant after it had been seized, pursuant to the requisition of the plaintiff in the replevin action. The judgment which had been entered on behalf of the plaintiff was irregular and was subject to being vacated on a direct motion to that end. Such a direct motion was made and there having been no summons served the lack of jurisdiction to make a judgment thus made known to the court, necessitated a holding that the judgment thus entered was without jurisdiction and irregular and, therefore, should be vacated in its entirety. This will leave the plaintiff free to make proper service of the summons and proceed with the action in an orderly manner. (Civ. Prac. Act, §§ 237, 1092, 1124; Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584; Kurzweil v. Story & Clark Piano Co., 95 Misc. 484, 494.) The appeals from the other orders and the judgment entered as upon a default are dismissed. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.