Freeman v. Young — 26 N.Y. Super. Ct. 666

Majority

p. 666

Lewis Freeman, plaintiff, vs. Sanford Young and others, defendants.

Headnote

1. A motion to set aside a complaint for non-conformity with the summons, . cannot be made before the summons has been served.

2. Although when an attachment is ordered to be set aside, a right of action upon the undertaking, given when it was issued, commences, there is no necessity for directing the undertaking to be delivered to the defendants to be sued, nor of taking it from the files, until the trial of an action upon it, when it may be produced in court.

8. Where an order to file security for costs is peremptory and absolute, and no time is allowed for compliance therewith, the 57th general court rule is applicable, and the plaintiff has twenty days in which to comply with it.

4. An appeal from such an order does not in itself stay proceedings. And if the plaintiff does not file security within twenty days, the defendant will be entitled to a dismissal of the complaint; unless a stay of proceedings is obtained.

(Before Robertson, Ch. J. at special term,

1864.)

This was a motion to set aside the complaint in the action for non-conformity with the summons ; to compel the plain-to file security for costs, under the penalty of dismissal of the complaint, and to pay costs heretofore granted on a motion ; and to have the undertaking given on an attachment heretofore issued in the action and set aside, delivered to the defendants to be prosecuted. It was founded on an order previously made in this action, setting aside the attachment issued therein, and also the complaint, for not corresponding with the summons, unless an amended one should be served in ten days, and ordering security for costs to be filed by the plaintiff; giving him ten days to serve such amended complaint; and directing him to pay $ 10 costs ; and was made on an affidavit showing a demand of such costs on the plaintiff’s attorney, which also stated that the summons was for relief, and the complaint for a money demand on contract, and that the defendant had sustained damage by the attachment.

The affidavit on the part of the plaintiff to oppose such motion showed that no summons was ever served upon the defend-, ant, who is non-resident of this county, and has never been in it

p. 667

since the attachment was issued, and that an appeal has been taken from the order before mentioned.

H. N. Walker, for the motion,

A. Nash, contra.

It does not appear in the papers before me, how the defendant is enabled to fix upon and determine what the summons in this action is, when it has never been served. Two of the defendants, on whose behalf this motion is made, have voluntarily appeared by. attorney in this action, which is equivalent (for the purpose of jurisdiction) to personal service of the summons on them, (Code, § 139,) even in this court, unless they expressly limit the appearance of their attorney to the purpose of setting aside proceedings. (Mahaney v. Penman, 4 Duer, 603 . S. C. 1 Abb. 34 .)' The object of serving a summons is to acquire jurisdiction over the person; the designation in it of the relief sought is simply to confine the plaintiff in his complaint, and judgment in case of default, to that so designated, (Code, § 275,) and to enable and require him to proceed under the proper subdivision of section 246 of the Code, according to the nature of such relief. If the defendant enters into a controversy by answering, he waives his objection to the relief claimed, (Id.) and consents to have any given to- which the case in the complaint entitles the plaintiff. If he voluntarily appear without service of a summons and serves no answer, the plaintiff can only obtain the relief specified in the complaint, where it is in an action or contract to recover money, under the latter part of the first subdivision of the 246th section of the Code, which authorizes the clerk to ascertain by proof the amount due, or, where it is for specific relief, under the second subdivision of that section ; otherwise the plaintiff could not obtain judgment where the defendant Voluntarily appeared, but put in no answer. The part of the present motion to dismiss the complaint for not conforming to

p. 668

an imaginary summons in possession of the plaintiff’s attorney must, therefore, he denied.

There is no necessity for delivering the undertaking to the defendants to he sued.- The Code requires all undertakings given under it to be filed with the clerk of the court, unless a different disposition is made, except one in case of an action of claim and delivery; and there is no necessity of taking them from the files until the trial in an action upon them ; when they may be produced in court. If the attachment be set aside, a right of action on it commences. Changing the custody of it may be prejudicial, and is unnecessary, without some special cause shown.

The former order, made and served, to file security for costs, was peremptory and absolute, and no time was allowed for compliance therewith ; the 57 th general rule is therefore applicable, and the plaintiff had twenty days for the purpose of complying therewith. More than that time has elapsed, and the' order has not been complied with. The appeal brought does not in itself stay proceedings. (Bacon v. Reading, 1 Duer, 622 .) The defendant is therefore entitled to a dismissal of the complaint, with costs, unless the plaintiff, upon affidavits disclosing the proceedings in this action, obtains a stay of proceedings by reason of the pendency of such appeal, within four days ; and in that case the complaint shall'not be dismissed until such stay be removed.

The defendant is entitled to the usual process for collecting his costs, granted on the former motion, without special leave of the court.