State Board of Pharmacy v. Jacob

Appellate Terms of the Supreme Court of New York

State Board of Pharmacy v. Jacob

46 Misc. 607, 92 N.Y.S. 836

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1905

StatusPublished

This text of 46 Misc. 607 (State Board of Pharmacy v. Jacob) 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

State Board of Pharmacy v. Jacob, 46 Misc. 607, 92 N.Y.S. 836 (N.Y. Ct. App. 1905).

Pincite

Opinion

O’Gorman, J.

These actions were brought by the plaintiff to recover penalties imposed by chapter 667 of the Laws of 1900. Service of the summons, when first issued, not having been made upon the defendants, alias summons were issued, served, and returned with an affidavit of such service indorsed thereon. The appellants’ main contention herein is that the copy alias summons- served upon the defendants, not hearing thereon the indorsement, “ action for a penalty pursuant to the provisions of chapter 667 of the Laws of 1900 (§§ 198, 201),” as required by section 38 of the Municipal Court Act (L. 1902, eh. 580), the court below acquired no jurisdiction of the defendants, and there[608]*608fore erred in not granting the defendants’ motion made to set aside the service and vacate the judgments. The orders appealed from recite that the plaintiff was allowed to file “ an amended affidavit of service showing the indorsements on the copy summons served,” and the defendants’ counsel admits in his brief that “ a copy of alias summons together with a copy summons was served upon the defendant.” The only object of the indorsement referring to the cause of action is to give the person sued notice of the nature of the action. Townsend v. Hopkins, 9 Civ. Pro. 257. And, as the original summons and the copy summons served had upon it the required reference to the cause of action, and the copy summons was served with the alias summons, the object of the statute was accomplished as well and as effectually as though such indorsement had also been made upon the alias summons. It does not appear that the defendants made any objection to the filing of the “ amended affidavit of service,” which was evidently made for the purpose of showing that the copy summons, with the proper indorsements thereon, as aforesaid was served with the copy alias summons. It is, therefore, now too late to question the right of the plaintiff to file such “ amended affidavit.”

Orders in each case affirmed, with costs.

Scott and Blanchard, JJ., concur.

Orders affirmed, with costs.

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O’Gorman, J.

These actions were brought by the plaintiff to recover penalties imposed by chapter 667 of the Laws of 1900. Service of the summons, when first issued, not having been made upon the defendants, alias summons were issued, served, and returned with an affidavit of such service indorsed thereon. The appellants’ main contention herein is that the copy alias summons- served upon the defendants, not hearing thereon the indorsement, “ action for a penalty pursuant to the provisions of chapter 667 of the Laws of 1900 (§§ 198, 201),” as required by section 38 of the Municipal Court Act (L. 1902, eh. 580), the court below acquired no jurisdiction of the defendants, and there[608]*608fore erred in not granting the defendants’ motion made to set aside the service and vacate the judgments. The orders appealed from recite that the plaintiff was allowed to file “ an amended affidavit of service showing the indorsements on the copy summons served,” and the defendants’ counsel admits in his brief that “ a copy of alias summons together with a copy summons was served upon the defendant.” The only object of the indorsement referring to the cause of action is to give the person sued notice of the nature of the action. Townsend v. Hopkins, 9 Civ. Pro. 257. And, as the original summons and the copy summons served had upon it the required reference to the cause of action, and the copy summons was served with the alias summons, the object of the statute was accomplished as well and as effectually as though such indorsement had also been made upon the alias summons. It does not appear that the defendants made any objection to the filing of the “ amended affidavit of service,” which was evidently made for the purpose of showing that the copy summons, with the proper indorsements thereon, as aforesaid was served with the copy alias summons. It is, therefore, now too late to question the right of the plaintiff to file such “ amended affidavit.”

Orders in each case affirmed, with costs.

Scott and Blanchard, JJ., concur.

Orders affirmed, with costs.

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Bluebook (online)

46 Misc. 607, 92 N.Y.S. 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-board-of-pharmacy-v-jacob-nyappterm-1905.