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Sullivan v. Harney

103 N.Y.S. 177 Court N.Y. App. Term Decision date 1907-03-14 English

Delivered by HENDRICK, J.

Contents

Majority

p. 177
(53 Misc. Rep. 249)
SULLIVAN v. HARNEY.
(Supreme Court, Appellate Term.
March 14, 1907.)

Headnote

Process—Defects—Failure to Give Office Address of Attorney.
Failure of a summons to give the street number of plaintiff’s attorney, as required by Code Civ. Proc. § 417, is a mere irregularity, and not a jurisdictional defect, so that defendant, having known such office address and retained the summons, could not have the service set aside, and the judgment entered in the case vacated. ■
Appeal from City Court of New York, Special Term.
Action by Joseph A. Sullivan against William Hyer Harney. From an order denying a motion to set aside service of the summons and vacate judgment, defendant appeals. Affirmed.
ARGUED before GIEDERSLEEVE, P. J., and DAVIS and HENDRICK, JJ.
Alexander Melhado, for appellant.
Charles Cramer, for respondent.

The summons was subscribed with the name of the plaintiff’s attorney, after which appeared the words, “New York City.”' It did not contain “the street number or other suitable designation of the particular locality,” as required by section 417 of the Code of Civil Procedure. The appellant contends that the omission of the street number rendered the summons absolutely void, and that no jurisdiction was acquired by the service of the summons upon the defendant.

The summons filed with the judgment roll contains the office address of the plaintiff’s attorney, which was omitted in the summons served upon the defendant. It further appears that the defendant had actual knowledge of the office address of the attorney for the plaintiff, and' he retained the summons from the 17th day of May, 1906, to the 3d' day of November, 1906, a period of'almost six months. The omission-of the street number does not constitute a jurisdictional defect. It is an irregularity. Wiggins v. Richmond, 58 How. Prac. 376; Hull v. Canandaigua Elec. Light Co., 55 App. Div. 419 , 66 N. Y. Supp. 865 ; Littauer v. Stern, 177 N. Y. 233 , 69 N. E. 538 .

The order appealed from should be affirmed, with costs. All concur..

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