27 N.Y.S. 160 | N.Y. Sup. Ct. | 1893
This action was begun on the 3d day of July, 1893, by the service of summons and the usual other proceedings. by which an action of this nature is commenced. Its object was for the partition of certain property situated in the county of Monroe. No other defendant except Arsino B. Warner appears, and he answers, admitting all the facts alleged in the complaint and setting up as a defense only that another notion is pending for the same cause between the same parties.
The undisputed facts are that on the 31st day of March,. 1893, Arsino B. Warner caused to be filed in the clerk’s office-of Monroe county summons, complaint and notice of thependency of action for the partition of the same property which is sought to be partitioned in this suit. The parties to-that action are the same as in this action, except that the plaintiff in that action is Arsino B. Warner and George Warner is. a defendant. On the day on which the notice of pendency was filed, summons was served upon one of the defendants,, and shortly thereafter summons was served upon other defendants. George Warner was not served, nor did he know that, any defendant had been served with summons, but he did know that complaint and notice of pendency was filed.
On the 3d day of July, 1893, that being the condition of Arsino Warner’s action, George Warner caused this action to-be begun and summons to be served upon the proper parties. Thereupon, and after summons in George Warner’s action had been served upon him, Arsino Warner completed the service of the summons in his action by serving those defendants whom he had not served before, including Ge'orge Warner, and then he answers, setting up the defense that another action is pending for the same cause between the same parties. There is no doubt that if his action was pending at. the time when this action was begun it is a complete answer to the plaintiff’s suit. The only question presented, then, is whether, as against George Warner, Arsino B. Warner’s action, had been begun on the third day of July, when summons in this action was served upon Arsino Warner.
In ordinary cases it is a proposition not to be disputed that,, under the Code, the mere issuing of summons is not the commencement of an action for ordinary purposes. . Kerr v. Mount, 28 N. Y. 659. It is quite true that, for certain purposes, the court is deemed to have acquired jurisdiction by the granting of a provisional remedy. Code Civ. Proc. § 416. But that jurisdiction is conditional and it is liable to be lost
For the purpose of preventing the running of the Statute of Limitations, the Code provides that the delivery of the summons to the sheriff, with the intention that it shall be actually served, is equivalent to the commencement of the action. Code Civ. Proc. § 399. But it is to be noticed that such delivery is not called a commencement of the action, but it is called in that section of the Code “ an attempt to commence an action,” and that section is to be limited to the Statute of Limitations, and not to be further extended. Farmers' Loan & Trust Compamy v. Dickson, 9 Abb. Pr. 61, 64. No way is provided in the Code by which any person can be brought into court in any action until summons has been served upon him, either personally or by some mode of substituted service. Nothing of this kind was ever attempted to be done by Arsino Warner as far as George was concerned.
Upon the question raised here the judgment of the court must be for the plaintiff, but as outside the issue of another action pending there has practically been a default on the part of Arsino Warner as well as the other defendants, the usual order of reference should be made, that the court, upon the coming in of the report of the referee, may order such a judgment as is proper.
Judgment accordingly.