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Lassen v. Aronson

21 N.Y.S. 452 Court N.Y. Super. Ct. English

Delivered by GILDERSLEEVE, J.

Contents

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p. 452
LASSEN v. ARONSON.
(Superior Court of New York City, Special Term.
October, 1892.)

Headnote

Action por Penalty—Indorsement on Summons—Jurisdiction. In an action for a penalty or forfeiture given by a statute, where a copy of the complaint is not served with the summons, a failure to comply with Code Civil Proc. § 1897, providing that in such case a general reference to the statute must be indorsed on the copy of the summons, and, in addition, such a description of the statute as will identify it with reasonable certainty, etc., is fatal, and the service gives the court no jurisdiction over defendant's person.
Action by Alexander 0. Lassen against Albert Aronson, president of the New York Concert Company, a stock corporation, for the penalty prescribed by Laws 1890, c. 564, § 29, which requires a stock corporation to keep certain books open for the inspection of stockholders and creditors, and provides that any officer or agent who shall neglect or refuse to exhibit the same, or to allow them to be inspected, shall forfeit to the party injured a penalty of $50 for every such neglect or refusal, and all damages resulting to him therefrom. The summons was served on defendant without a copy of the complaint, and there was no indorsement thereon of the act under which the action was brought. Defendant served notice of appearance, and he now moves to withdraw the same, and to set aside the service of the summons. Motion granted.
David Leventritt, for the motion.
Charles H. Blair, opposed.

The failure to comply with the provisions of section 1897 of the Code[1] is fatal to the validity of the service of the summons, and leaves the court without jurisdiction over the person of the defendant. The defect was not remedied by the defendant’s appearance, for the reason that it did not appear upon the face of the summons. Defendant has leave to withdraw his notice of appearance.

Summons set aside, and complaint dismissed, with costs.

1 Code Civil Proc. § 1897, provides that, in an action to recover a penalty or forfeiture given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of thé summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, and, in addition, such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given in different sections thereof for different acts or omissions.