Burger v. Lawson

Fred J. Munder, J. The plaintiff, having failed to file the order for substituted service, the supporting affidavits, the summons and the proof of service thereof within the statutory time limit, (Civ. Prac. Act, § 231), now moves for an order directing their filing nunc pro tunc. Jurisdiction over the defendant was obtained by the fact that he was served in the manner directed by the order for substituted service. Therefore the omission was merely procedural and not jurisdictional, and may be supplied. (Air Conditioning Training Corp. v. Pirrote, 270 App. Div. 391.) The defendant argues that the motion is defective because it is not supported by an affidavit of the plaintiff. That may be overlooked in a case such as this where the attorney speaks with knowledge and alone is qualified to urge an issue involving technical provisions of the law. (Rothenberg v. Fields, 204 Misc. 86.) Motion granted. Submit order.