Drake v. Shenandoah Pottery, Inc.

141 Misc. 471, 252 N.Y.S. 705, 1930 N.Y. Misc. LEXIS 1815

• Court: City of New York Municipal Court
• Decided: July 15, 1930
• Status: Published

Opinion

Shalleck, J.

This is a motion to vacate judgment and warrant of attachment. Stipulation entered into between the attorneys dated May 17, 1930, extending defendant’s time to answer does not constitute a general appearance. (Engels v. Ferguson, 79 Misc. 40.) (See, also, Bell v. Good, 19 N. Y. Supp. 693, 696; Benedict v. Arnoux, 38 id. 882; Paine Lumber Co. v. Galbraith, 38 App. Div. 68.)

Defendant is a foreign corporation, not authorized to do business in this State and has no office for the transaction of business in the city of New York. The plaintiff attached defendant’s property by serving summons and complaint on the Long Island Railroad Company, Irving Trust Company and Brooklyn Boiler and Radiator Corporation. This service was not as required by section 229 of the Civil Practice Act.

Service in the instant action is controlled by section 905 of the Civil Practice Act.

Motion to vacate and set aside judgment entered by default on June 5, 1930, is, therefore, granted, and motion to vacate and set aside warrant of attachment dated May 13, 1930, is likewise granted.