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Sweetzer v. Kembert

65 N.Y. St. Rep. 118 Court N.Y. City Ct. Decision date 1895-01-12 English

Delivered by Ehrlich, C. J.

Contents

Majority

p. 118
George D. Sweetzer et al., Resp’ts, v. Edward E. Kembert et al., App’lts.
(New York City Court, General Term,
Filed January 12, 1895.)

Headnote

Pleading—Answer—Frivolous.
Where the defendant has voluntarily appeared in the action, his answer to the jurisdiction of the court on the ground that he is not a resident of this state, and has no property and was not served with process herein, is frivolous.
•Appeal from an order awarding judgment to plaintiffs on defendants’ answer as frivolous, and from a judgment entered thereon.
John R. Abney, for app’lts; Thompson & Allen, for resp’ts.

—The complaint is the ordinary one for goods

p. 119
sold and delivered by the plaintiffs, a firm doing business in this •city, to the defendants, a firm doing business at Sumter, in the state of South Carolina. The answer, by way of pleading to the jurisdiction of the court, alleges that the defendants are not residents of the state of New York, having no property within the state, and were not served with process within the state. The plaintiff thereupon moved'for judgment on the answer as frivolous. The application was granted, and the appeal is from the order awarding judgment.

The action being by resident plaintiffs, on a contract presumably made here, the allegations of the answer tendered no issue which required a trial, unless it be the statement that the defendants were not served with process within the state. This allegation, standing alone, would imply simply that the plaintiffs had not brought the defendants within the jurisdiction of the court. Such fact could not anticipate the action of the plaintiffs, nor authorize the defendants to tender it as an issue. The proper remedy was to move to set aside any unauthorized service or attempted service as irregular. Nones v. Hope Mutual Insurance Co., 8 Barb. 541 . This is not a case where the defendants were •coerced within the jurisdiction of the court, and compelled, in defense, to resort to the plea of non jurisdiction, as in Hamburger v. Baker, 35 Hun, 456 . Here defendants voluntarily appeared, and attempted to try an issue of their own making. The answer was therefore properly adjudged frivolous, and the judgment directed thereon must be affirmed, with costs.

All concur.

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