Evans v. Evans

273 A.D. 895, 77 N.Y.S.2d 320, 1948 N.Y. App. Div. LEXIS 5180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1948
• Status: Published

Opinion

Appeal by defendant from an order granting motion of plaintiff for an injunction pendente lite and denying the cross motion of defendant, appearing specially, to vacate service of the summons and complaint in an action to enjoin defendant from prosecuting a suit for divorce in another State. Order reversed on the law, without costs, the motion of plaintiff denied, and the motion of defendant granted, without costs. The defendant appeared specially in moving to vacate. (Muslushy v. Lehigh Valley Coal Co., 225 FT. Y. 584, 587.) It appears to be undisputed that plaintiff failed to procure an order for substituted service (Civ. Prae. Act, §§ 230, 231) before serving the summons, complaint and motion papers on defendant in the State of Arkansas. The valid commencement or the pendency of an action is an indispensable prerequisite to the granting of a temporary injunction. (Civ. JPrae. Act, §§ 877, 878; Shotland v. Mulligan, 134 App. Div. 504, 505; Matter of Greene, 153 App. Div. 8, 10, 11.) This procedural defect precludes consideration of the questions of the jurisdiction of the court (Robinson v. Robinson, 254 App. Div. 696, affd. 279 FT. Y. 582) and the necessity of an injunction as a remedy. (Pereira v. Pereira, 272 App. Div. 281.) Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.