Hittner v. City of New York

Appellate Division of the Supreme Court of New York

Hittner v. City of New York

16 A.D.2d 770, 228 N.Y.S.2d 1, 1962 N.Y. App. Div. LEXIS 9534

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 22, 1962

StatusPublished

This text of 16 A.D.2d 770 (Hittner v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hittner v. City of New York, 16 A.D.2d 770, 228 N.Y.S.2d 1, 1962 N.Y. App. Div. LEXIS 9534 (N.Y. Ct. App. 1962).

Pincite

Opinion

Order, entered on June 22, 1960, unanimously modified on the law and on the facts to provide that the defendant Martin Anderson, doing business under the trade name and style of Anderson So Anderson, shall have 10 days after service of order hereon with notice of entry to serve an answer to the complaint herein, or if he has already answered then he shall have a like period of time to serve an amended answer to the complaint herein; and that in such answer or amended answer, as the ease may be, he may plead as a defense the allged invalidity of the service of the summons upon him and the consequent lack of jurisdiction of the court over his person; and the said order, as so modified, affirmed, without costs. Under the circumstances here, the issue of fact as to personal service should not have been resolved upon the affidavits. While, ordinarily, the proper procedure would require the determination of such issue promptly by hearing at Special Term or before a Referee (see Hammond v. Hammond, 9 A D 2d 615), under the special circumstances here and particularly in view of the considerable delay since the making and determination of the motion, the issue may properly be left to be raised by way of defense in the defendant’s answer and for determination at the trial. (See Civ. Prac. Act, § 237-a, subd. 3, par. [c]; subd. 4.) Settle order on notice. Concur — Breitel, J. P., Valente, Stevens, Eager and Steuer, JJ.

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Order, entered on June 22, 1960, unanimously modified on the law and on the facts to provide that the defendant Martin Anderson, doing business under the trade name and style of Anderson So Anderson, shall have 10 days after service of order hereon with notice of entry to serve an answer to the complaint herein, or if he has already answered then he shall have a like period of time to serve an amended answer to the complaint herein; and that in such answer or amended answer, as the ease may be, he may plead as a defense the allged invalidity of the service of the summons upon him and the consequent lack of jurisdiction of the court over his person; and the said order, as so modified, affirmed, without costs. Under the circumstances here, the issue of fact as to personal service should not have been resolved upon the affidavits. While, ordinarily, the proper procedure would require the determination of such issue promptly by hearing at Special Term or before a Referee (see Hammond v. Hammond, 9 A D 2d 615), under the special circumstances here and particularly in view of the considerable delay since the making and determination of the motion, the issue may properly be left to be raised by way of defense in the defendant’s answer and for determination at the trial. (See Civ. Prac. Act, § 237-a, subd. 3, par. [c]; subd. 4.) Settle order on notice. Concur — Breitel, J. P., Valente, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

16 A.D.2d 770, 228 N.Y.S.2d 1, 1962 N.Y. App. Div. LEXIS 9534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hittner-v-city-of-new-york-nyappdiv-1962.