Reiter v. Irving — 128 Misc. 13

Majority

p. 13

Isidor Reiter and Another, Copartners, Trading as Reiter & Botterman, Respondents, v. Gustave Irving, Doing Business as Credit Men’s Bureau of Collections, Appellant.

Supreme Court, Appellate Term, Second Department,

April 24, 1926.

Headnote

Process — Municipal Court of City of New York — substituted service can be made under Municipal Court Code, § 23, only where defendant resides in city — affidavit must show facts — service set aside and judgment vacated — Civil Practice Act, §§ 230, 231, construed with Municipal Court Code, § 23.

Substituted service of a summons, in an action commenced in the Municipal Court of the City of New York, can be made under section 23 of the Municipal Court Code, only where the defendant resides within the city or is a domestic corporation having its place of business therein.

Accordingly, substituted service is set aside and the judgment rendered thereon vacated, since it appears that the affidavit upon which the order of substituted service was made, does not show that the defendant was a resident of the city of New York, but, on the contrary, shows that it was impossible to ascertain his residence.

The provisions of the Civil Practice Act (§§ 230, 231) with reference to substituted service are to be read with section 23 of the Municipal Court Code.

Appeal from orders of the Municipal Court, Queens, Second District, denying motions to vacate the judgment and the order for substituted service.

Edgar I. Ahrweiler, for the appellant.

Edward Scherer, for the respondent.

Order denying motion to vacate judgment unanimously reversed upon the law, with ten dollars costs to appellant, and motion granted, with ten dollars costs. The order denying motion to vacate order for substituted service unanimously reversed upon the law, without costs, and motion granted, without costs.

An order for substituted service of the summons in the Municipal Court can be made only where the defendant resides within the city of New York or is a domestic corporation having its place of business therein. (Mun. Ct. Code, § 23; Sever v. Zucca, 106 Misc. 620 ; Athias v. Hollingsworth, 179 N. Y. Supp. 606 .) The order allowing substituted service and the affidavit upon which it was granted both fail to show that the defendant was a resident of the city of New York, but on the contrary show that his residence could not be ascertained. This is wholly insufficient.

The provisions of the Civil Practice Act with reference to

p. 14

substituted service (§§ 230, 231) are to be read with section 23 of the Municipal Court Code. (U. S. Cast Iron Pipe & Foundry Co. v. Roberts & Co., 114 Misc. 560 , 562.)

Present, Cropsey, MacCrate and Lewis, JJ.

Cases cited

Sever v. Zucca 106 Misc. 620 N.Y. Mun. Ct. p. 13
United States Cast Iron Pipe & Foundry Co. v. Hugh S. Roberts & Co. 114 Misc. 560 N.Y. App. Term at 562 p. 14