National City Bank v. Bishinsky

Appellate Terms of the Supreme Court of New York

National City Bank v. Bishinsky

150 Misc. 521, 269 N.Y.S. 587, 1934 N.Y. Misc. LEXIS 1089

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 8, 1934

StatusPublished

This text of 150 Misc. 521 (National City Bank v. Bishinsky) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

National City Bank v. Bishinsky, 150 Misc. 521, 269 N.Y.S. 587, 1934 N.Y. Misc. LEXIS 1089 (N.Y. Ct. App. 1934).

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Opinion

Per Curiam.

While the usual practice where the court decides

that a defendant has not been served with process is to dismiss the action (Tarpey v. Jersey Co-Operative Co., 98 Misc. 302), where recourse'is had to the clerk, under section 18 of the Municipal Court Code, for the issuance of the summons to toll the Statute of Limitations, the fact that the summons is not served on the proper parties in the first instance does not warrant the dismissal of the complaint unless there appears a lack of due diligence within the meaning of the statute in effecting service. As there is no evidence in the record which would authorize such a finding here the decision of the court below cannot be sustained.

Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied, without prejudice, to an application to dismiss the action on the ground of lack of due diligence in service of the summons.

All concur; present, Hammer, Callahan and Shientag, JJ.

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Per Curiam.

While the usual practice where the court decides

that a defendant has not been served with process is to dismiss the action (Tarpey v. Jersey Co-Operative Co., 98 Misc. 302), where recourse'is had to the clerk, under section 18 of the Municipal Court Code, for the issuance of the summons to toll the Statute of Limitations, the fact that the summons is not served on the proper parties in the first instance does not warrant the dismissal of the complaint unless there appears a lack of due diligence within the meaning of the statute in effecting service. As there is no evidence in the record which would authorize such a finding here the decision of the court below cannot be sustained.

Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied, without prejudice, to an application to dismiss the action on the ground of lack of due diligence in service of the summons.

All concur; present, Hammer, Callahan and Shientag, JJ.

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Bluebook (online)

150 Misc. 521, 269 N.Y.S. 587, 1934 N.Y. Misc. LEXIS 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-city-bank-v-bishinsky-nyappterm-1934.

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