Berford v. New York Iron Mine
The Superior Court of New York City
Appeal from order vacating prior order authorizing service of summons personally without the state. Defendants Wetmore, White and Maynard, residents of Marquette, Michigan, were there personally served with summons, complaint, order and notice under § 440 of the Code. The order contained the provisions of that section for service without the state, only; and not those for publication or mailing.
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Appeal from order vacating prior order authorizing service of summons personally without the state. Defendants Wetmore, White and Maynard, residents of Marquette, Michigan, were there personally served with summons, complaint, order and notice under § 440 of the Code. The order contained the provisions of that section for service without the state, only; and not those for publication or mailing. The order appealed from set aside, and vacated the order for this service, with costs to defendants. The motion was brought on by an order to show cause, which did not specify any time for its…
1Opinion of the CourtTruax, J.
I think that the preliminary objection has been waived by the adjournment. Section 440 is mandatory and must be complied with in order to give the court jurisdiction. It differs somewhat from § 135 of the old Code, and for this reason Abrahams v. Mitchell, *5178 Abb. 123, is not an authority, nor is Weil v. Martin, 24 Hun 645, an authority for plaintiff. In the Weil case the plaintiff simply did not wish to avail himself of the option given by § 440, and, therefore, did- not put into the order the provision for personal service.
Roger M. Sherman, for appellant:—
I. Under § 440 a party may now have…
2Cases cited2 opinions
- Stewart v. . Long Island R.R. Co.New York Court of Appeals · 1886
- Wortman v. WortmanNew York Supreme Court · 1863