Utilities & Industries Management Corp. v. Barton Distilling Co.

Appellate Division of the Supreme Court of New York

Utilities & Industries Management Corp. v. Barton Distilling Co.

22 A.D.2d 767, 253 N.Y.S.2d 690, 1964 N.Y. App. Div. LEXIS 2840

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

DecidedNovember 5, 1964

StatusPublished

This text of 22 A.D.2d 767 (Utilities & Industries Management Corp. v. Barton Distilling Co.) 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.

Bluebook

Utilities & Industries Management Corp. v. Barton Distilling Co., 22 A.D.2d 767, 253 N.Y.S.2d 690, 1964 N.Y. App. Div. LEXIS 2840 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order and judgment entered thereon dismissing the complaint, unanimously affirmed, with $50 costs to defendant-respondent. This is not an action to procure a judgment excluding the defendant from an interest in or lien upon specific personal property within the State within the meaning of former sections 232 and 235 of the Civil Practice Act, and the court did not acquire jurisdiction over the defendant by the service on August 15, 1963 of a summons and complaint upon its officer at Chicago, Illinois. The provisions of CPLR 302 and 313, in effect on September 1, 1963, may not be applied to validate the “attempted service of process which was jurisdictionally defective when made” (Simonson v. International Bank, 14 N Y 2d 281, 290). The defendant, however, in the service of its answer following the taking of effect of CPLR, properly utilized the procedure therein prescribed for the raising of the objection of lack of jurisdiction (CPLR 10003). Thus, the defendant properly asserted such objection by way of answer and properly moved to dismiss on this ground (.CPLR 320, subd. [c]; 3211, subd. [a], par. 8). The dismissal of the action is sustainable on the ground of lack of jurisdiction of the person of the defendant and we do not reach the question as to the sufficiency of the first alleged cause of action for a declaratory judgment. Concur—Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Order and judgment entered thereon dismissing the complaint, unanimously affirmed, with $50 costs to defendant-respondent. This is not an action to procure a judgment excluding the defendant from an interest in or lien upon specific personal property within the State within the meaning of former sections 232 and 235 of the Civil Practice Act, and the court did not acquire jurisdiction over the defendant by the service on August 15, 1963 of a summons and complaint upon its officer at Chicago, Illinois. The provisions of CPLR 302 and 313, in effect on September 1, 1963, may not be applied to validate the “attempted service of process which was jurisdictionally defective when made” (Simonson v. International Bank, 14 N Y 2d 281, 290). The defendant, however, in the service of its answer following the taking of effect of CPLR, properly utilized the procedure therein prescribed for the raising of the objection of lack of jurisdiction (CPLR 10003). Thus, the defendant properly asserted such objection by way of answer and properly moved to dismiss on this ground (.CPLR 320, subd. [c]; 3211, subd. [a], par. 8). The dismissal of the action is sustainable on the ground of lack of jurisdiction of the person of the defendant and we do not reach the question as to the sufficiency of the first alleged cause of action for a declaratory judgment. Concur—Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Bluebook (online)

22 A.D.2d 767, 253 N.Y.S.2d 690, 1964 N.Y. App. Div. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utilities-industries-management-corp-v-barton-distilling-co-nyappdiv-1964.