Sweetzer v. Kembert

11 Misc. 107, 31 N.Y.S. 995, 65 N.Y. St. Rep. 118

• Court: City of New York Municipal Court
• Decided: January 15, 1895
• Status: Published

Opinion

Ehrlich, Ch. J.

The complaint is the ordinary one for goods sold and delivered by the plaintiffs, a firm doing business in this city, to the defendants, a firm doing business at Sumter, in the state of South Carolina.

The answer, by way of pleading to the jurisdiction of the court, alleges that the defendants are not residents of the state of Rew York, have no property within the state, and were not served with process within the state. The plaintiff thereupon moved for judgment on the answer as frivolous. The application was granted, and the appeal is from the order awarding judgment.

The action being by resident plaintiffs on a contract presumably made here, the allegations of the answer tendered no issue which required a trial, unless it he the statement that the defendants were not served with process within the state.

This allegation standing alone would imply simply that the plaintiffs had not brought the defendants within the jurisdiction of the court. Such fact could not anticipate the action of the plaintiffs nor authorize the defendants to tender it as an issue. The proper remedy was to move to set aside any unauthorized service or attempted service as irregular. Nones v. Ins. Co., 8 Barb. 541.

This is not a case where the defendants were coerced within the jurisdiction of the court and compelled in defense to resort to the plea of no'njurisdiction, as ■ in Hamburger v. Baker, 35 Hun, 456. Here defendants voluntarily appeared and attempted to try an issue of their own making.

The answer was, therefore, properly adjudged frivolous, and the judgment directed thereon must be affirmed, with costs.

Fitzsimons and Conlan, JJ., concur.

Judgment affirmed, with costs.