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Schillinger v. Herrmann

71 N.Y.S. 778 Court N.Y. App. Term English

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p. 778
(35 Misc. Rep. 280.)
SCHILLINGER v. HERRMANN.
(Supreme Court, Appellate Term.
June, 1901.)

Headnote

1. Jurisdiction—Questioning by Answer.
An answer stating that defendant answers “without conceding jurisdiction of this court” is insufficient to challenge such jurisdiction.
'2. Same—Presumption.
Where a nonresident of the city of New York is sued in a municipal court by a long summons,' he cannot overcome the presumption that the service was proper, and that the court had jurisdiction, unless he shows not only that he was a nonresident, but that he had no place of business within said city.
Appeal from municipal court, borough of Manhattan, Seventh district.
Action by Frederick G. Schillinger against Henry Herrmann. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before SCOTT, P. J., and BEACH and FITZGERALD, JJ.
Goepel & Wahle, for appellant.
Franklin Pierce, for respondent.

This action was commenced in the municipal court of the city of New York by the service of the usual or “long” ■summons. The complaint was verified, and the defendant served a verified answer, in which he set up as a first defense a general denial, as a second defense that he was a nonresident of the city of New York, and as a third defense that there had been a former litigation between the parties. The answer was subscribed by his attorneys in the customary form, without reservation, except that at the beginning of the answer it is stated that the defendant answers “without conceding the jurisdiction of this court.” It has recently been decided that an action in a municipal court against a nonresident defendant must be commenced by the service of the “short” summons provided for by section 1369 of the Greater New York charter (Laws 1897, c. 378). But it has also been held tha subdivision 3 of section 1370 of the same charter, which provide that “no person who shall have a place in said city for the regula transaction of business shall be deemed a nonresident, under the provisions of this title,” creates an exception to section 1369, in tint it authorizes the commencement of an action against a nonresident who has a regular place of business within the city of New Yok bv the usual “long” summons such as was issued in the present jetton. Routenberg v. Schweitzer, 164 N. Y. 566 , 58 N. E. 1092 . Wbn such an action is commenced by a “long” summons formally sered upon the defendant within the said city, the residence of the lefendant, and the consequent jurisdiction of the court, will be resumed, without allegations or proof of residence. Sperry v. Maor, 1 E. D. Smith, 361. So, when a defendant objects that he shuld have been served by a short, instead of a long, summons, he rust show Ihe necessary facts to overcome the presumption that, irhis case, the long summons was the proper process. In other wrds, he must show both that he is a nonresident and that he has no lace

p. 779
within the said city for the regular transaction of business; for, if he be either a resident, or have such a place of business, he can be sued by a long summons. The defendant’s plea of nonjurisdiction was defective, in that, while he alleged his nonresidence, he failed to allege that he had no place of business within the said city. Even if the defendant could not lawfully be sued by a “short” summons, he did not take the objection properly, or in due season. If the service was void by reason of the defendant’s nonresidence, it was as if he had never been served at all. Still, since the action was one which the municipal court had jurisdiction to entertain if properly begun, the defendant could waive any defect in the process, and submit himself to the jurisdiction. If he had not intended to submit himself to the jurisdiction of the court, he should have appeared specially for the purpose of raising the question of jurisdiction by motion, for, where the case is one in which the court can acquire jurisdiction by the proper service of a summons, the fact of nonservice or of defective service cannot be raised by answer. Reed v. Chilson, 142 N. Y. 152 , 36 N. E. 884 ; Goldstein v. Goldsmith, 28 Misc. Rep. 569 , 59 N. Y. Supp. 677 . So far as concerns the merits, there was a sharp conflict of testimony, upon which the justice decided, as he had a right to do, in favor of the plaintiff. The nonproduction of the note by the plaintiff was sufficiently accounted for.

Judgment affirmed, with costs.

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