p. 50John S. Mabon, as Receiver of The Ongley Electric Company, Appellant, v. The Ongley Electric Company, Respondent.Headnote
Motion to set aside the service of process made upon a foreign corporation — the question where the cause of action an'ose will not he considered.Where personal service of the summons and complaint in an action, brought by a non-resident receiver of a foreign corporation against the corporation, has been made upon the foreign corporation, which thereafter makes a general appearance in the action, an order, setting aside the service upon the ground that the action is not one which can be brought under the authority conferred by section 1780 of the Code of Civil Procedure, is improper.
The question whether the cause of action arose within the State of New York should not be decided upon a motion to set aside the service of the summons.
Appeal by the plaintiff, John S. Habón, as receiver of The Ongley Electric Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1897, denying the plaintiff’s motion to resettle an order entered in said clerk’s office on the 1st day of June, 1897, and also from the order entered in said clerk’s office on the 1st day of June, 1897, vacating the service of the summons and setting aside an order appointing a temporary receiver.
Theodore L. Frothingham, for the appellant.
Rufus W. Peckham, Jr., for the respondent.
The grounds upon which this order was made setting aside the summons were, apparently, that the court had acquired no jurisdiction of the person of the defendant nor of the subject of the action. The defendant was personally served with a summons and subsequently made a general appearance in the action. The court, therefore, acquired jurisdiction of the defendant, unless it may be said that this is one of the actions which could not be brought against a foreign corporation by a non-resident plaintiff under section 1780 of the Code of Civil Procedure. We think, however, that the cause of action arose in this State, for the reasons stated in the
p. 51opinion upon appeal from the judgment sustaining a demurrer. But even if this were in doubt, the question does not properly arise on a motion to set aside service of a summons. It should be raised by demurrer or answer. The only questions to be considered on such a motion, ordinarily, are the legality or regularity of the service.
(Atlantic &
Pacific Tel. Co. v.
B. & O. R. R. Co., 87 N. Y. 355 .) The only ground, apparently, upon which this part of the order was made was that the complaint was demurrable and should be dismissed. This order appealed from should, therefore, be reversed, with costs of appeal to the appellant, and the motion denied, with costs.
The appeal from the order denying motion to resettle the former order should be dismissed, without costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Appeal from order denying resettlement dismissed, without costs.