Lassen v. Aronson — 29 Abb. N. Cas. 114

Majority

p. 114

LASSEN v. ARONSON.

N. Y. Superior Court, Special Term;

October, 1892.

Headnote

1. Summons; indorsement.] The failure to comply with Code Civ. Pro. § 1897—providing that in actions for a penalty or forfeiture given by statute, if the complaint is not served with the summons, a general reference to the statute must be indorsed on the summons so served—is fatal to the validity of the service of the summons and leaves the court without jurisdiction over the person of the defendant.

2. The same.] Such defect, since it does not appear on the face of the summons, is not remedied by defendant’s voluntary appearance.^[1]

Motion by defendant for leave to withdraw his notice of appearance and to set aside the service of a summons in an action for a penalty upon the ground that the summons was served without complaint and without an indorsement of a general reference to the statute under which the action was brought, as required by Code Civ. Pro. § 1897.

The action was brought by Alexander C. Lassen against Albert Aronson under the Laws of 1890, chapter 564, § 29, to recover a penalty for defendant’s refusal to allow an inspection of the books of a stock corporation.

After the service of the summons without the complaint, defendant’s attorney served a notice of appearance.

p. 115

This motion was made upon defendant becoming aware of_ the nature of the action by the service of the complaint.

David Leventritt, for the motion.

Charles H. Blair, opposed.

The failure to comply with the provisions of section 1897 of the Code is fatal to the validity of the service of the summons, and leaves, the court without jurisdiction over the person of the defendant. The -defect was not remedied by the defendant’s appearance for the reason that it did not appear upon the face of the summons.

Defendant has leave to withdraw his notice of appearance. Summons set aside and complaint dismissed, with costs.