Lynch v. Eustis

Appellate Terms of the Supreme Court of New York

Lynch v. Eustis

85 N.Y.S. 1063

Appellate Terms of the Supreme Court of New York·Decided January 7, 1904·Published

Opinion

PER CURIAM.

This is an appeal from an order denying the defendant’s motion to set aside an order for substituted service of the summons and complaint upon him. But one question is presented, viz., is proof of residence within the state essential to confer jurisdiction ? We think it is. The order was made pursuant to section 435 [1064]*1064of the Code of Civil Procedure. The language of this section designating the status of the person upon whom its provisions may become operative is “upon a defendant residing within the state.” The record is barren of such proof. The court was within jurisdiction, and the order is void.

Order reversed, with $io costs and disbursements. All concur.

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PER CURIAM.

This is an appeal from an order denying the defendant’s motion to set aside an order for substituted service of the summons and complaint upon him. But one question is presented, viz., is proof of residence within the state essential to confer jurisdiction ? We think it is. The order was made pursuant to section 435 [1064]*1064of the Code of Civil Procedure. The language of this section designating the status of the person upon whom its provisions may become operative is “upon a defendant residing within the state.” The record is barren of such proof. The court was within jurisdiction, and the order is void.

Order reversed, with $io costs and disbursements. All concur.

Lynch v. Eustis, 85 N.Y.S. 1063 (N.Y. Ct. App. 1904).

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