National Surety Co. v. Rosenberg

158 A.D. 896, 142 N.Y.S. 1043

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1913
• Status: Published

Opinion

Per Curiam:

As the County Court acquired jurisdiction over the defendant Rosenfeld by substituted service of a summons, it had power to permit the amendment of the complaint herein by striking out the claim for interest. (Van Clief v. Van Vechten, 130 N. Y. 571.) It does not sufficiently appear whether the summons and the complaint were served at the same time, and together, upon the defendant Rosenberg. If so served, then as the demand in the complaint was greater than the jurisdiction of the County Court, no jurisdiction was acquired over said defendant. The judgment against said defendant Rosenberg should be reversed and a new trial ordered, in order that proof may be given as to the exact manner of the service of the summons and the complaint herein, costs to abide the event. As to the defendant Rosenfeld, the judgment should be affirmed, with costs. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Judgment of the County Court of Kings county reversed as to defendant Rosenberg and new trial ordered, costs to abide the event, and affirmed as to defendant Rosenfeld, with costs.