Twentieth Century-Fox Film Corp. v. Dupper

Appellate Division of the Supreme Court of New York

Twentieth Century-Fox Film Corp. v. Dupper

33 A.D.2d 682, 305 N.Y.S.2d 918, 1969 N.Y. App. Div. LEXIS 2789

Appellate Division of the Supreme Court of the State of New York·Decided November 25, 1969·Published·Cited by 3 cases

Opinion

Order entered August 23,1968, denying motion to vacate, unanimously reversed, and order and judgment (one paper) entered October 31, 1968, directing declaratory judgment in favor of plaintiff corporation, vacated, on the law, unanimously, with $30 costs and disbursements to appellant, and complaint dismissed. CPLR 303 does permit the commencement of a separate action by service of a summons on the attorney of a nonresident during the pendency of an action; and for this purpose, i.e., the starting of a fresh action, the attorney is designated as agent for service. At best, we have here an attempt at-substituted service, not countenanced by statute. Personal delivery is the only method when a statute directs service of a process and is silent as to method. (See, 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2103-04; 3 Carmody-Wait 2d, New York Practice, § 24:49; Stevens v. State of New York, 277 App. Div. 418.) Concur — Eager, J. P., Capozzoli, McGivern, Nunez and McNally, JJ.

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Order entered August 23,1968, denying motion to vacate, unanimously reversed, and order and judgment (one paper) entered October 31, 1968, directing declaratory judgment in favor of plaintiff corporation, vacated, on the law, unanimously, with $30 costs and disbursements to appellant, and complaint dismissed. CPLR 303 does permit the commencement of a separate action by service of a summons on the attorney of a nonresident during the pendency of an action; and for this purpose, i.e., the starting of a fresh action, the attorney is designated as agent for service. At best, we have here an attempt at-substituted service, not countenanced by statute. Personal delivery is the only method when a statute directs service of a process and is silent as to method. (See, 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2103-04; 3 Carmody-Wait 2d, New York Practice, § 24:49; Stevens v. State of New York, 277 App. Div. 418.) Concur — Eager, J. P., Capozzoli, McGivern, Nunez and McNally, JJ.

Twentieth Century-Fox Film Corp. v. Dupper, 33 A.D.2d 682, 305 N.Y.S.2d 918, 1969 N.Y. App. Div. LEXIS 2789 (N.Y. Ct. App. 1969).

Pincite

33 A.D.2d 682 (Twentieth Century-Fox Film Corp. v. Dupper) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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