Kamp v. Kamp — 65 Misc. 2d 934

Majority

p. 934

Eleanor Vander Kamp, Plaintiff, v. Charles Vander Kamp, Defendant.

Supreme Court, Monroe County,

March 10, 1971.

Stanley G. Curtis and Kenneth Nelson for plaintiff. Elliott, Stern é Calabrese (Richard Elliott of counsel), for defendant.

In this divorce action the complaint was served with the summons. After the termination of conciliation proceedings plaintiff served another copy of the complaint which the defendant answered. On the trial defendant moved to dismiss the action on the ground that the service of the complaint with the summons voided not only the first complaint, but also the summons. The motion is denied. The prohibition against service of the complaint prior to termination of conciliation proceedings (Domestic Relations Law, § 211) voided the first complaint, but it did not void the summons even though the summons did not bear the indorsement, “Action for a Divorce,” as required by section 232 of the Domestic Relations Law. Since the defendant was fairly advised of the nature of the action, the summons may be deemed amended to include this indorsement (Apploff v. Apploff, 55 Misc 2d 781 ).

[Balance of opinion, in this divorce action on ground of cruel and inhuman treatment, is omitted as factual.]

Cases cited

Apploff v. Apploff 55 Misc 2d 781 N.Y. Sup. Ct. 1968-01-29 p. 934

Statutes and regulations cited

Domestic Relations Law p. 934