Schlichter v. Schultheis

26 A.D.2d 939, 274 N.Y.S.2d 443, 1966 N.Y. App. Div. LEXIS 3133

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1966
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County, entered January 3, 1966, which, on defendant’s oral motion made at a Trial Term, and a hearing thereon, dismissed the complaint without prejudice on the ground of lack of jurisdiction of the person of the defendant. Order reversed, with $10 costs and disbursements, motion denied and action directed to be restored to the Trial Calendar. In February, 1962, a summons and complaint were served upon defendant, who was then an infant. On August 6, 1963, he was examined before trial. On August 11, 1963, he became 21 years old; and, on September 20, 1963, he executed a transcript of his pretrial examination. Thereafter, when the action appeared on the Trial Calendar, it was marked ready by both parties and, in December, 1965, the parties selected a jury. Before the jury were sworn, however, defendant successfully moved to dismiss the action on the ground that, because of defective service upon him when he was an infant, jurisdiction had not been obtained over him. In our opinion, defendant’s motion should have been denied. The only inference that we can draw from the conduct of defendant and his counsel, subsequent to defendant’s 21st birthday, is a decision by defendant to participate in a genuine and substantial sense in the determination of the merits of plaintiff’s claim. (Henderson v. Henderson, 247 N. Y. 428.) Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.