Tucci v. Romeo — 94 Misc. 317

Majority

p. 317

Luigi Tucci, Appellant, v. Francesca Romeo and Antonetta Romeo, Respondents.

(Supreme Court, Appellate Term, Second Department,

March, 1916.)

Headnote

Summons — in action for replevin — Municipal Court Code — service — Code Civ. Pro., §§ 721, 722, 723.

Where the summons in an action in replevin brought in the Municipal Court of the city of New York was issued by plaintiff’s attorney at the time the order to replevy was granted and made returnable forthwith, the action is properly dismissed on the ground that the court had no jurisdiction.

Section 19 of the Municipal Court Code which prescribes that a summons must require the defendant to appear before the clerk of the court within five days from the date of service and answer the complaint is mandatory, and if not complied with the summons is ineffectual and void and not merely irregular.

Sections 721, 722 and 723 of the Code of Civil Procedure were not intended to remedy a jurisdictional defect, and thereunder a summons which is totally void cannot be amended.

p. 318

Appeal from an order dated January 21,1916, denying a motion to amend a summons vacating a requisition to replevy and dismissing the action, which order was filed in the clerk’s office of the Municipal Court of the city of New York, borough of Brooklyn, fifth district.

Joseph Logomasini, for appellant.

Abner C. Surpless, for respondents.

This action was brought in replevin. The summons was issued by plaintiff’s attorney at the time the order to replevy was granted and was made returnable forthwith. One of the defendants appeared specially for the purpose of vacating the order of replevin upon the ground that the court had no jurisdiction.

Plaintiff then moved to amend the summons nunc pro tuna, so that it would read that the time within which defendant should appear and answer the complaint would be ‘ ‘ five days, ’ ’ instead of ‘‘ forthwith. ’ ’ The motion to amend was denied. The order of replevin was vacated and the action dismissed. Section 19 of the Municipal Court Code prescribes the requisites of a summons, among them being that it must require the defendant to appear before the clerk of the court five days from the service thereof, and section 20 of the Code gives the form of the summons which must be substantially followed, and if the summons omits to set forth any of the jurisdictional essentials prescribed by the statute it is vitally defective and void, and while a summons which is merely irregular may be amended pursuant to the provisions of section 723 of the Code of Civil Procedure (Stuyvesant

p. 319

v. Weil, 167 N. Y. 421 ), a summons which is totally void cannot be amended.

I am of the opinion that section 19 is mandatory, and if the provisions of that section áre not complied with a summons is ineffectual and void, and is not merely irregular. The language of this section is substantially the same as section 4Í7 of the Code of Civil Procedure, and it has been held that where a summons was served in an action in the Supreme Court without naming the county where the plaintiff desired the trial it would be set aside as irregular and void. Osborn v. McCloskey, 55 How. Pr. 345 .

Sections 721, 722 and 723 of the Code were only intended to cure and supply defects for irregularities, and were not intended to remedy a jurisdictional defect. ' ' .

The plaintiff, not having acquired jurisdiction over the defendants, the action was properly dismissed.

Blackmar and Kapper, JJ., concur.

Action dismissed.

Cases cited

Stuyvesant v. Weil 167 N. Y. 421 N.Y. 1901-06-11 p. 319
Osborn v. McCloskey 55 How. Pr. 345 N.Y. Sup. Ct. p. 319