Feldman v. Siegel

43 Misc. 392, 87 N.Y.S. 538

Opinion

Sgott, J.

The order appealed from, in so far as it vacates the attachment, is not appealable. Leavitt v. Katzoff, 43 Misc. Rep. 26; 86 N. Y. Supp. 495. It goes further, however, and dismisses the action. This was not authorized. Section 90, chapter 580, Laws of 190-2, provides that the vacation of the attachment does not affect the jurisdiction of the court to hear and determine the action, where the defendant has appeared generally in the action, or where the summons was served personally upon him, or where judgment may he taken against him as being indebted jointly with another defendant who has been thus summoned, or has thus appeared. In the present case the- claim seems to he against the defendants as copartners, and the return shows that the summons was personally served upon the defendant Siegel. Hence, although the justice may have been right in vacating the attachment, he should have retained the action.

The order must be modified by striking out so much thereof as purports to dismiss the action, which should be remitted to the Municipal Court for disposition. Ho costs of this appeal to either party.

Freedman, P. J., and Blanchard, J., concur.

Order modified. Ho costs.