Jacobs v. White

Laughlin, J.: This action was brought for the conversion of merchandise amounting in value to the sum of $133.71, and the plaintiffs recovered the amount claimed, together with costs, which were taxed in their favor. The defendants moved for retaxation of costs. It appears that the defendants are both non-residents of the State of New York and reside in the State of New Jersey, and that they have no property or place of business within this State. The plaintiffs attempted to serve the defendants by publication, büt they obtained no attachment. Pursuant to the order for service by publication, the summons and complaint were served on one of the defendants without the State. Thereupon the defendants voluntarily appeared and served an answer. The action having been brought to recover a judgment for a sum of money only against non-residents of the State, no jurisdiction was obtained by the service without the State (Haase v. Michigan Steel Boat Co., 148 App. Div. 298), and the only jurisdiction obtained was by the voluntary personal appearance of the defendants. The theory upon which the motion for retaxation for the costs was made by the defendants, and upon which the appeal [113] from the order denying the motion is sought to be successfully sustained, is that by virtue of the provisions of section 424 of the Code of Civil Procedure the voluntary appearance of the defendants is equivalent to personal service in the county of New York. The voluntary appearance was equivalent to personal service for the purpose of conferring jurisdiction (Reed v. Chilson, 142 N. Y. 152); but such a voluntary appearance is not equivalent to personal service within the county in which the action is brought for the purpose of determining whether, under the provisions of section 3228, subdivision 5, of the Code of Civil Procedure, the plaintiffs were precluded from taxing costs on the theory that the action might have been brought in the City Court. The .sole test prescribed by the provisions of said subdivision 5 with respect to whether the action could have been brought in the City Court is whether service has been actually made in the county of New York. (Moraff v. Kohn, 157 App. Div. 648.) Service was not actually made within the county of New York, and the voluntary appearance of the defendants in the action is not, for the purposes of the provisions of said subdivision 5, equivalent to actual personal service within the county of New York. It, therefore, follows that the plaintiffs were entitled to recover costs against the defendants, notwithstanding the fact that the recovery was for less than the sum of $1,000. It follows that the order should be affirmed, with ten dollars costs and disbursements. Ingraham, P. J., Clarke and Scott, JJ., concurred; McLaughlin, J., dissented.