Majority
p. 338Milligan v. Fles. (City Court of New York, Special Term. May, 1888.)
Headnote
Wbits—Shoot Summons—Who is Entitled to.The fact that a plaintiff has a place of business in New York city does not preclude him from the right of a short summons, authorized by Code Civil Proc. N. Y. .§ 3165, in case either plaintiff or defendant resides without the city.
Action on a note by John C. Milligan against Amelia Fles. Plaintiff obtained an order of short summons, and defendant showed that plaintiff had a stated place of business in New York city, and moved to vacate the order.
Hasten & Nichols, for plaintiff. Jacob Levy, for defendant.
Where either the plaintiff or defendant does not reside within the city of New York, a short summons may be ordered. Code Civil Proc. § 3165. The fact that either or both have an office or place of business within the county does not affect this provision of the Code. A place of business within the county exempts a plaintiff from the necessity of giving security for costs as a non-resident, under sections 3268 and 3269 of the Code, (section 3160,) and exempts a defendant from being proceeded against by attachment as a non-resident of the county, (Code, § 3269, subd. 3;) but the exemption does not extend to or affect the short summons authorized by section
p. 339
3165, supra. The motion by the defendant to vacate, the order directing a short summons to issue will therefore be denied, with $10 costs to abide the event. Ordered accordingly.