Salitra v. Borson

127 Misc. 173 | N.Y. Sup. Ct. | 1926

Gibbs, J.

Plaintiffs seek to enjoin the defendant union from picketing in front of the premises occupied by them. On the return of the order to show cause the defendant association appeared specially for the purpose of objecting to the jurisdiction of the court, basing the objection upon the ground that neither the summons, complaint or order to show cause was served upon the defendant as required by section 13 of article 3 of the General Associations Law (as added by Laws of 1920, chap. 915). The court reserved decision on this question and permitted the parties to the proceeding to present argument in support of and in opposition to the application. This proposition must be determined before the court may inquire into the merits of the application. The .order to show cause signed by a justice of this court directed , that a copy of the order and the papers upon which it was based be served upon the person picketing and thereafter but before the return day upon any officer of the defendant union. Plaintiff submitted an affidavit of the process server who alleges that he served the summons, complaint, affidavits and order to show cause herein upon Abraham Borson, president of the Delicatessen Clerks’ Union of Greater New York, by delivering to and leaving personally with a person at the office of the defendant a true copy thereof. He alleges that the person who received the process stated that he was “ an officer ” of the defendant’s association but that he refused to divulge his name. Another affidavit made by one of the attorneys for. the plaintiffs avers that he served another copy of these papers on a person who was picketing in front of plaintiffs’ premises. In reply Abraham Borson makes affidavit that he was not the president of the defendant’s association at the time the suit was instituted nor was hi served with any of these papers. He asserts that on the day preceding the date of the order to show cause another person was duly elected president of the defendant. Max Nachminow swears that while at the defendant’s office he was served with the papers. He alleges that he is not and never has been an officer of the association. Section 13 of the General Associations Law permits an action to be brought against the president or treasurer of such an association. It is elementary that suit is begun by the service of the summons or by the general appearance of the defendant. The order and the papers upon which it was granted must be served on the defendant association in the manner prescribed by law. (Civ. Prac. Act, §§ 225, 883; Rules Civ. Prac. rule 21.)

Under the circumstances the question is: Was proper service made upon the defendant? In Bruce Lodge, Inc., v. Sub-Committee of Management (208 App. Div. 100) it was decided that the summons and complaint must be served on the president or other corresponding officer if there be no president. The same manner of service of a restraining order is necessary. (Rules Civ. Prac. rule 21.) It is conceded that the papers herein were served neither on Borson, alleged to be the president, nor his successor. The affidavit of service merely alleges that they were served on a person who said he was an officer. Such service in my opinion is not sufficient to confer jurisdiction.

I am not persuaded that compliance with the direction in the order to show cause that service thereof be made upon any officer of the defendant union is sufficient to cure the defect. (Civ. Prac. Act, §§ 225, 883.) Accordingly I conclude that this court has no jurisdiction over the person of the defendant. Application for injunction denied, without prejudice, however, to the plaintiffs’ right to renew the application.