166 Misc. 796 | City of New York Municipal Court | 1938
This action, which was brought to recover for personal injuries alleged to have been sustained by the plaintiffs Marie Lella, Jennie Perrotta and Margaret Boscia; by the plaintiff Dan Boscia to recover medical expenses and the loss of the infant plaintiff Margaret Boscia’s services; and by the plaintiff Lawrence Santora for property damage, appeared in its regular order on the non-jury calendar of this court and was tried before me without a jury.
The plaintiffs Marie Leila and Margaret Boscia did not appear on the trial.
The infant defendant is nineteen years of age. Pursuant to an order of substituted service made herein on January 15, 1937, a summons was served upon the infant defendant on January 18, 1937. The order for such service, the papers on which it was granted, and the affidavit of service of the summons have not been filed in this court. The order for substituted service and the papers on which it was granted must be filed, service made and proof of service filed within twenty days after the order is granted; otherwise the order becomes inoperative. Such substituted service is complete ten days after proof thereof is filed and the same proceedings may be taken thereupon as if the summons had been served by publication pursuant to order for that purpose. (Civ. Prac. Act, § 231.) Failure to file the papers mentioned in section 231 of the
A perusal of the cases cited discloses that the jurisdictional defect therein discussed is of general, not limited, application. There seems to be no distinction between those cases in which the infant defendant’s right to or interest in real property is involved and any other case in which the infant is a party defendant. A party who is of full age may prosecute or defend a civil action in person or by attorney unless he has been judicially declared to be incompetent to manage his affairs. (Civ. Prac. Act, § 236.) And an adult may voluntarily appear in any action in which he is a party defendant. An adult defendant who serves an answer to a complaint waives the question of the service of the summons; his voluntary appearance is equivalent to the service of the summons upon him. (Civ. Prac. Act, § 237.) In the case of an infant defendant the rule is different. To give the court jurisdiction of his person, compliance with the statutory steps prescribing the service of process upon the infant defendant must be shown. In Leahy v. Hardy (supra) service of the summons was made upon the infant defendant only. The service was not made upon the person in whose employ he was. The court said: “ It is likely that the plaintiff, having made service on the infant personally, could have completed the service by publication under the provisions of section 232, subdivision 4, of the Civil Practice Act; but no such attempt was made, and it is now too late.”
I
Defendant’s motion to dismiss the complaint for lack of jurisdiction is granted; exception to plaintiffs; ten days’ stay. Plaintiffs’ remedy is to start a new action and to apply to the discretion of the court for a preference. (Marty v. Roberts, 146 Misc. 332.)