Appleton v. Rose

Pendleton, J. The action is by' an employee for breach of an agreement of employment. Defendants being non-residents, an attachment was issued and jurisdiction was sought to be secured by levies thereunder. Defendants appeared specially and moved to set aside and vacate the attachment, the attempted levies thereunder, and the alleged service of the summons and complaint. The court set the motions for trial upon a traverse of the return, and, after hearing, denied the motions, set the case for trial and, defendants not appearing, an inquest was taken and judgment rendered. A notice of appeal was served, including a notice that the order above mentioned will be brought up for review. Notice was also served of a motion in this court on affidavits and the testimony on the trial of the traverse to vacate the alleged levies, and for other relief. The levies under the attachment were directed against Gfimbel Brothers, a corporation, and a copartnership of Bendheim & 'Strauss, alleged debtors of the defendants. Defendants’ contention is that no notice showing the property attached was left with the person against whom demand exists, [321] citing section 78 of the Municipal Court Act, and no copy of the inventory was served on defendants by delivering it to the persons served under the attachment, as required by section 83 of that act, when defendant has no place of residence in the city, and that only one copy of the warrant was delivered to each of such persons, whereas two are required, one to comply with section 78 relating to service on the person against whom the demand exists and one for defendant under section 83. In Umla v. Bennett, 30 App. Div. 324, the failure to serve a copy of the inventory on the person in whose possession the property attached is found was held to be a fatal jurisdictional defect. That case was under section 2910 of the Code, but the language is exactly similar to section 83 of the Municipal Court Act. It is substantially undisputed that a copy of the inventory was not delivered to either Cimbel Brothers or Bendheim & Strauss, as required by section 83, and this being so the court never acquired jurisdiction of defendants, and the judgment and order should be reversed. Hotel Touraine v. Waite, 61 Misc. Rep. 54; Mears v. North American Brewing Co., 113 App. Div. 41; Schloss v. Wilson, 74 Misc. Rep. 90; Roberts & Lewis Co. v. Dale, 74 id. 390. In view of the foregoing it is unnecessary to consider the other questions raised by appellants. Judgment and order reversed, with costs, and complaint dismissed, with costs. Guy and Bijur, JJ., concur. Judgment and order reversed, with costs.