Mabon v. Ongley Electric Co.

24 A.D. 50, 48 N.Y.S. 973

Opinion

Williams, J.:

The grounds upon which this order was made setting aside the summons were, apparently, that the court had acquired no jurisdiction of the person of the defendant nor of the subject of the action. The defendant was personally served with a summons and subsequently made a general appearance in the action. The court, therefore, acquired jurisdiction of the defendant, unless it may be said that this is one of the actions which could not be brought against a foreign corporation by a non-resident plaintiff under section 1780 of the Code of Civil Procedure. We think, however, that the cause of action arose in this State, for the reasons stated in the opinion upon appeal from the judgment sustaining a demurrer. But even if this were in doubt, the question does not properly arise on a motion to set aside service of a summons. It should be raised by demurrer or answer. The only questions to be considered on such a motion, ordinarily, are the legality or regularity of the service. (Atlantic & Pacific Tel. Co. v. B. & O. R. R. Co., 87 N. Y. 355.) The only ground, apparently, upon which this part of the order was made was that the complaint was demurrable and should be dismissed. This order appealed from should, therefore, be reversed, with costs of appeal to the appellant, and the motion denied, with costs.

The appeal from the order denying motion to resettle the former order should be dismissed, without costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Appeal from order denying resettlement dismissed, without costs.