Mrwik v. Mrwik

49 A.D.2d 750

Opinion

In a matrimonial action in which the plaintiff wife was granted a judgment of divorce, she appeals from an order of the Supreme Court, Queens County, dated March 17, 1975, which, inter alia, vacated the said judgment and dismissed the action. Order reversed, with $20 costs and disbursements, and matter remanded to Special Term for the making of a determination on the present record as to whether defendant was actually served with process. An improperly executed affidavit of service is a mere irregularity and not a jurisdictional defect (Lambert v Lambert, 270 NY 422, 427). The crucial question is whether or not defendant was in fact served with process. Special Term, which saw and heard the witnesses is best able to answer such question. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.