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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 25, 1969

StatusPublished

Cited by3 cases

This text of 33 A.D.2d 682 (Twentieth Century-Fox Film Corp. v. Dupper) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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).

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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.

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Bluebook (online)

33 A.D.2d 682, 305 N.Y.S.2d 918, 1969 N.Y. App. Div. LEXIS 2789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twentieth-century-fox-film-corp-v-dupper-nyappdiv-1969.

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