Maxwell v. First Port Jefferson Corp.

Appellate Division of the Supreme Court of New York

Maxwell v. First Port Jefferson Corp.

31 A.D.2d 813, 297 N.Y.S.2d 885, 1969 N.Y. App. Div. LEXIS 4690

Appellate Division of the Supreme Court of the State of New York·Decided February 3, 1969·Published·Cited by 6 cases

Opinion

Cross appeals, as limited by appellants’ briefs, from portions of an order of the Supreme Court, Suffolk County, dated June 6, 1968. Order modified, on the law, by (1) striking out the first and fourth ordering paragraphs thereof and (2) substituting therefor a provision granting the motion to vacate the judgment in favor of plaintiff against defendant which was entered on November 5, 1965. As so modified, order affirmed, with $10 costs and disbursements to defendant. The findings of fact below have not been affirmed. We construe the action to be one in quantum meruit. As such, the clerk had no authority to enter the default judgment (Geer, Du Bois & Co. v. Scott & Sons Co., 25 A D 2d 423; CPLR 3215, subds. [a], [e]). Moreover, we are of the opinion that the default judgment should have been vacated for lack of jurisdiction of defendant (CPLR 5015, subd. [a], par. 4). Christ, Acting P. J., Brennan, Hopkins, Benjamin and Martuseello, JJ., concur.

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Cross appeals, as limited by appellants’ briefs, from portions of an order of the Supreme Court, Suffolk County, dated June 6, 1968. Order modified, on the law, by (1) striking out the first and fourth ordering paragraphs thereof and (2) substituting therefor a provision granting the motion to vacate the judgment in favor of plaintiff against defendant which was entered on November 5, 1965. As so modified, order affirmed, with $10 costs and disbursements to defendant. The findings of fact below have not been affirmed. We construe the action to be one in quantum meruit. As such, the clerk had no authority to enter the default judgment (Geer, Du Bois & Co. v. Scott & Sons Co., 25 A D 2d 423; CPLR 3215, subds. [a], [e]). Moreover, we are of the opinion that the default judgment should have been vacated for lack of jurisdiction of defendant (CPLR 5015, subd. [a], par. 4). Christ, Acting P. J., Brennan, Hopkins, Benjamin and Martuseello, JJ., concur.

Maxwell v. First Port Jefferson Corp., 31 A.D.2d 813, 297 N.Y.S.2d 885, 1969 N.Y. App. Div. LEXIS 4690 (N.Y. Ct. App. 1969).

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