Lassen v. Aronson

21 N.Y.S. 452

Opinion

GILDERSLEEVE, J.

The failure to comply with the provisions of section 1897 of the Code¹ is fatal to the validity of the service of the summons, and leaves the court without jurisdiction over the person of the defendant. The defect was not remedied by the defendant’s appearance, for the reason that it did not appear upon the face of the summons. Defendant has leave to withdraw his notice of appearance.

Summons set aside, and complaint dismissed, with costs.

1 Code Civil Proc. § 1897, provides that, in an action to recover a penalty or forfeiture given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of thé summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, and, in addition, such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given in different sections thereof for different acts or omissions.