Lawrence v. Bernstein

O’Gorman, J. The objections urged by the appellant herein are not sufficient to invalidate the judgment. The failure to state in the affidavit upon which an order for substituted service of the summons was granted, that no previous application for such an order had been made was an irregularity merely and refusal of the trial justice to dismiss the complaint upon that ground does not constitute reversible error. Skinner v. Steele, 88 Hun, 307; Matter of National Gramophone Corp., 82 App. Div. 593; Pratt v. Bray, 10 Misc. Rep. 445. Neither is the fact that an alias summons only was served upon the defendant a fatal defect. Section 26 of the Municipal Court Act provides that “ an action must be commenced by the service of a summons.” Section 30 provides that if the marshal or other person having the summons to serve cannot find the defendant the clerk shall, at the request of the plaintiff, continue to “ issue another summons to be known and stamped alias ’ until the defendant is served.” There is no provision in said act which requires that, with the service of this " alias" summons, the original summons shall also be served. The alias ” summons is as much a writ issued to obtain jurisdiction of the defendant as the first summons issued. The provision for the issuance of an " alias " summons is for the purpose of keeping the cause of action alive, as the same section provides that “ an action shall be deemed commenced at the time the summons is actually delivered for service ” and an " alias " writ is “ a second writ issued when the first has failed its purpose.” Century Dictionary. The [610] appellant’s criticism as to the form of the summons, even if tenable, is not borne out by the return. The form of the summons filed with the return seems to conform to that prescribed in the Municipal Court Act. The defendant also 'failed to show a surrender and acceptance by the landlord of the demised premises and the judgment should be affirmed. Scott and Blanchard, JJ., concur. Judgment affirmed, with costs.