30 F.R.D. 3 (E.D.N.Y. 1962), C. A. 62 C 66, National Equipment Rental, Limited v. Szukhent

Docket Nº:Civ. A. 62 C 66.
Citation:30 F.R.D. 3
Opinion Judge:DOOLING, District Judge.
Party Name:NATIONAL EQUIPMENT RENTAL, LTD., Plaintiff, v. Steve SZUKHENT and Robert Szukhent, Defendants.
Attorney:Harry R. Schwartz, Brooklyn, N.Y., for defendants, in support of motion. Wilbur G. Silverman, Jamaica, N.Y., for plaintiff, opposed.
Case Date:March 19, 1962
Court:United States District Courts, 2nd Circuit, Eastern District of New York

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30 F.R.D. 3 (E.D.N.Y. 1962)

NATIONAL EQUIPMENT RENTAL, LTD., Plaintiff,

v.

Steve SZUKHENT and Robert Szukhent, Defendants.

Civ. A. No. 62 C 66.

United States District Court, E. D. New York.

March 19, 1962

A corporation brought an action against Michigan residents who had obtained farm equipment from the corporation under a lease providing that New York resident, who was nominated by the corporation, was designated by the Michigan residents as their agent for acceptance of service of process. The residents of Michigan made a motion to quash the service of summons on them. The District Court, Dooling, J., held that the service of process was insufficient and the result was a lack of jurisdiction over the Michigan residents, though the New York resident, after receiving service of summons and complaint, mailed them to the Michigan residents, since no agency relation was in fact established.

Attempted service of summons and complaint on Michigan residents quashed.

Harry R. Schwartz, Brooklyn, N.Y., for defendants, in support of motion.

Wilbur G. Silverman, Jamaica, N.Y., for plaintiff, opposed.

DOOLING, District Judge.

Defendants, residents of Michigan, move to quash the service of summons on them.

Defendants obtained farm equipment from plaintiff under an instrument, denominated a lease, which defendants signed and acknowledged in May 1961 and which plaintiff signed in July 1961. The last operative clause of the instrument provides:

‘ * * *; and the Lessee [i. e., defendants] hereby designates Florence Weinberg, 4721 Forty-first Street, Long Island City, N.Y., as agent for the purpose of accepting service of any process within the State of New York.’

Plaintiff commenced this action on January 23, 1962, alleging a total default under the lease commencing June 20, 1961 and demanding all the payments due under the lease. The complaint alleged in a clear and separate paragraph that defendants had designated Florence Weinberg as an agent for the purpose of accepting service of process within the State of New York. The marshal delivered two copies of the summons and complaint to Florence Weinberg on January 24, 1962 and on that same day she mailed the summons and complaint to defendants stating that they had been served upon her as the defendants' agent for the purpose of accepting process within the State of New York in accordance with defendants' contract with

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plaintiff. On January 24, 1962 plaintiff itself notified defendants by certified mail of the service of process on Florence Weinberg, the agent designated by them.

On February 15, 1962 (twenty-two days after the service of process on Florence Weinberg) counsel for defendants mailed to plaintiff's attorney a notice that counsel appeared specially for defendants ‘ solely for the purpose of moving to set aside the service of the summons and complaint’ . On February 27, 1962 counsel for defendants served by mail the present motion to quash service, challenging the validity of such a designation of an ‘ agent’ to receive service of process as not adequately calculated to give notice and intimating that Florence Weinberg, a person unknown to defendants and unrelated to them,...

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