Kurland v. Chernobil

234 A.D. 712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1931
• Status: Published

Opinion

Order denying motion of defendant Lehmann to set aside service of summons and complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Carswell, J., concurs upon the ground that the statute may not be construed to have a retroactive effect, even though it relates to procedural matters, without destroying its validity, since Lehmann was a non-resident on the day it became effective; Davis, J., concurs on the ground that to apply the statute (Vehicle & Traffic Law, § 52-a) retroactively deprives the defendant of property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. At the time the defendant became a nonresident he had appointed no agent and had designated no person or officer to receive process in his behalf. A statute subsequently enacted cannot designate such a person without his consent, nor does the statute by its terms have retroactive effect in a ease of this nature. Lazansky, P. J., concurs upon both grounds; Young and Kapper, JJ., dissent and vote to affirm. Leave will be granted to appeal to the Court of Appeals if requested.