Schillinger v. Herrmann

Per Curiam. This action was commenced in- the Municipal Court of the city of Mew York by the service of the usual or “ long ” summons. The complaint was verified and the defendant served a verified answer, in which he set up as a first defense a general denial, as a second defense that he was a nonresident of the city of Mew York, and as a third defense that there had been a former litigation between the parties. The answer was subscribed by his attorneys in the customary form, without reservation, except that at the beginning of the answer it is stated that the defendant answers “ without conceding the jurisdiction of this court.” It has recently been decided that an action in a Municipal Court against a nonresident defendant must be commenced by the service of the “ short ” summons provided for by section 1298 of the Greater New York charter (Laws of 1897, chap. 378). But it has also been held that subdivision 3 of section 1370 of the same charter, which provides that “Mo person who shall have a place in said city for the regular transaction of business shall be deemed a non-resident under the provisions of this title ”, creates an exception to section 1298, in that it authorizes the commencement of an action against a nonresident who has a regular place of business within the city of Mew York, by the usual “long” summons such as was issued in the present action. Routenberg [282] v. Schweitzer, 164 N. Y. 566. When such an action is commenced by a “ long ” summons formally served upon the defendant within the said city, the residence of the defendant and the consequent jurisdiction of the court will be presumed without allegations or proof of residence. Sperry v. Major, 1 E. D. Smith, 361. So, when a defendant objects that he should have been served by a short, instead of a long, summons, he must show the necessary facts to overcome the presumption that, in his case, the long summons was, the proper process. In other words, he must show both that he is a nonresident and that he has no place within the said city for the regular transaction of business, for, if he be either a resident or have such a place of business, he can be sued by a long summons. The defendant’s plea of nonjurisdiction was defective, in that, while he alleged his nonresidence, he failed to allege that he had no place of business within the said city. Even if the defendant could not lawfully be sued by a “ short ” summons, he did not take the objection properly or in due season. If the service was void by reason of the defendant’s nonresidence, it was as if he had never been served at all. Still, since the action was one which the Municipal Oourt had jurisdiction to entertain, if properly begun, the defendant could waive any defect in the process, and submit,himself to the jurisdiction. If he had not intended to submit himself to the jurisdiction of the court, he should have appeared specially for the purpose of raising the question of jurisdiction by motion, for, where the case is one in which the court can acquire jurisdiction by the proper service of a summons, the fact of nonservice or of defective service cannot be raised by answer. Reed v. Chilson, 142 N. Y. 152; Goldstein v. Goldsmith, 28 Misc. Rep. 569. So far as concerns the merits, there was a sharp conflict of testimony upon which the justice decided, as he had a right to do, in favor of the plaintiff. The nonproduction of the note by the plaintiff was sufficiently accounted for. Present: Scott, P. J., Beach and Fitzgerald, JJ. Judgment affirmed, with costs.