Schlesinger v. Schmidt Hotel Co.

Appellate Terms of the Supreme Court of New York

Schlesinger v. Schmidt Hotel Co.

154 N.Y.S. 208

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 28, 1915

StatusPublished

This text of 154 N.Y.S. 208 (Schlesinger v. Schmidt Hotel Co.) 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

Schlesinger v. Schmidt Hotel Co., 154 N.Y.S. 208 (N.Y. Ct. App. 1915).

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Opinion

GUY, J.

The return in this case is fatally defective. On the return day the defendant filed an affidavit by its president, stating that he had been handed two papers, one a copy of the summons, and the other a copy of an alias summons. What motion, if any, was made thereon, does not appear; but there is an order directing that the service of the summons be set aside, and the complaint dismissed, and that judgment be entered for the defendant. This was on the ground that no jurisdiction was obtained over the defendant in failing to serve it with copies of all the alias that had been issued on affidavit filed. No judgment has yet, so far as the return shows, ever been entered upon this order. The clerk’s certificate recites as follows:

“The case here closed. The justice presiding * * * thereupon, to wit, on 8th day of March, 1915, indorsed on summons: ‘Dismissed; defective summons on affidavit filed.’ ”

This is not a judgment entered in any form. An appeal from an order dismissing a complaint will not lie. Kromback v. Penn. Steel Co., 84 N. Y. Supp. 297.

Appeal dismissed, with $10 costs. All concur.

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GUY, J.

The return in this case is fatally defective. On the return day the defendant filed an affidavit by its president, stating that he had been handed two papers, one a copy of the summons, and the other a copy of an alias summons. What motion, if any, was made thereon, does not appear; but there is an order directing that the service of the summons be set aside, and the complaint dismissed, and that judgment be entered for the defendant. This was on the ground that no jurisdiction was obtained over the defendant in failing to serve it with copies of all the alias that had been issued on affidavit filed. No judgment has yet, so far as the return shows, ever been entered upon this order. The clerk’s certificate recites as follows:

“The case here closed. The justice presiding * * * thereupon, to wit, on 8th day of March, 1915, indorsed on summons: ‘Dismissed; defective summons on affidavit filed.’ ”

This is not a judgment entered in any form. An appeal from an order dismissing a complaint will not lie. Kromback v. Penn. Steel Co., 84 N. Y. Supp. 297.

Appeal dismissed, with $10 costs. All concur.

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Bluebook (online)

154 N.Y.S. 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlesinger-v-schmidt-hotel-co-nyappterm-1915.

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