Berkman v. Weisinger

Gildersleeve, J. There is no dispute as to the facts in this case. The action was commenced by the issuance of a summons which was never served upon the defendant. Thereupon, without a ’return made by the marshal or any other person that the defendant could not be found, as required by section 30 of the Municipal Court Act, an alias [516] summons was issued upon request of the plaintiff. This alias summons was served, and upon the return day thereof the defendant appeared specially and objected to the jurisdiction of the justice, upon the ground that no alias summons could issue without the proof above mentioned and provided for in said section. This motion was denied, and the case set down for trial. When the day for trial was reached another justice was sitting in the district and, upon the case being called for trial, the defendant again moved to dismiss the action for want of jurisdiction, upon .the same grounds as first made. The then trial justice took the motion under advisement. The trial proceeded and, at the close of plaintiff’s case, the defendant again renewed his motion and rested his case. Subsequently, the court rendered a judgment dismissing the complaint without prejudice to a new action, and based his decision upon-the ground of want of jurisdiction. In this we think he was clearly right. The plaintiff, when he found that the original summons had not been served, unless he desired to keep the action alive, could have had another original summons issued. He elected to requesl that an “alias” summons be issued. Before authority to issue such a summons is conferred upon the clerk, the marshal, or other person having the summons to serve, must make a return to the effect that the defendant cannot be found so as to be served. This was not done and the issue of an “ alias ” summons was, therefore, unauthorized. Loeb v. Smith, 24 Misc. Rep. 200. Although a formal order denying defendant’s motion to dismiss the complaint was entered, there was no necessity for the entry of such an order as no appeal would lie therefrom, it not being one of the orders mentioned in sections 253, 254 and 255 of the Municipal Court Act (White v. Lawyers Surety Co., 84 N. Y. Supp. 247), and the defendant’s only method of a review of the denial of his motion would have been upon an appeal from the judgment. It cannot, therefore, be said that the subsequent action of the justice, who, upon the renewal of the defendant’s motion, entertained and granted it, was a review |->f another justice’s order, as his action was merely the granting of a motion, made by the defendant, before he had [517] waived any of his rights by a general appearance in the action. Tiffany v. Lord, 65 N. Y. 310. The judgment must, therefore, be affirmed, with costs. Davis arid Clinch, JJ., concur. Judgment affirmed, with costs.