188 Misc. 808 | N.Y. Sup. Ct. | 1946
Defendants appearing specially move to vacate service of summons, warrant of attachment and levy made thereunder, based upon the failure of the plaintiff administratrix to comply with section 905 of the Civil Practice Act and for insufficiency of the papers supporting the warrant.
The action was originally commenced by Leo Groom during his lifetime and a warrant of attachment was issued on April 19, 1946. The Sheriff of the City of New York, Kings County Division, made a levy thereunder on April 22,1946, upon funds due the defendants from the estate of James J. Healey.
Service of the summons was effected on July 17, 1946. In the meantime and on May 6, 1946, Leo Groom died and his administratrix, the present plaintiff, qualified on May 17, 1946. Without knowledge of the death of Groom, defendants made an application returnable June 20, 1946, upon notice to the attorney for the original plaintiff, to vacate the warrant of attachment upon the ground that they had not been served within the time fixed by section 905 of the Civil Practice Act
(1) Under the authorities interpreting the provisions of section 905 of the Civil Practice Act, service of summons must be made within thirty days after issuance of a warrant of attachment, and a failure so to effect service divests the court of jurisdiction and renders the warrant a nullity (McCoy v. Erie Forge & Steel Co., 118 Misc. 851, affd. 201 App. Div. 570; Blossom v. Estes, 84 N. Y. 614). The language of section 905 is clear; it makes no- exceptions other than in case of the defendant’s death before expiration of the thirty-day period. Here the plaintiff died and there is no provision in section 905 of the Civil Practice Act for an extension of time within which to effect service.
(2) Even assuming that plaintiff is entitled to an extension of time within which to effect service, and assuming further that sections 240 and 905 of the Civil Practice Act have application to the plaintiff, the time limitations contained in both sections have not been complied with. The original plaintiff died on May 6, 1946, and his administratrix was appointed on May 17, 1946. The summons was not served until July 17, 1946. Thus sixty-one days elapsed from the date that the administratrix was appointed before service was effected. At most the administratrix was, entitled to sixty days after letters of administration were granted. Service, therefore, was not timely and the warrant of attachment must fall.
(3) The affidavit presented in support of the warrant of attachment is insufficient in that it contains conclusions and, in effect, repeats the allegations of the complaint. To sustain
Accordingly, the motion is in all respects granted and sheriff’s poundage is assessed against the plaintiff. Settle order.
