Foster v. McMorran
| Decision Date | 15 January 1970 |
| Citation | 307 N.Y.S.2d 291,33 A.D.2d 978 |
| Parties | Leland FOSTER and Agnes Foster, Respondents v. J. Burch McMORRAN, Appellant, and Green Island Construction Corp., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Julius L. Sackman, Albany, for appellant.
Fred J. O'Donnell, Ilion, for respondents.
Before MARSH, P.J., and WITMER, MOULE and HENRY, JJ.
Defendant appeals from an order of Herkimer Special Term which denied his motion to dismiss plaintiffs' complaint on the ground, inter alia, of lack of jurisdiction of his person.
The appellant was sued individually and not as a state officer. The summons was not served on him personally but while he was temporarily absent from the State it was delivered to a person in his office who was not shown to have been designated by him to receive service on his behalf.
Jurisdiction of an individual defendant is obtained only by personal delivery of the summons to him (CPLR 308) and delivery to some other person does not constitute valid personal service even though the summons thereafter comes into his possession. (McDonald v. Ames Supply Co., 22 N.Y.2d 111, 291 N.Y.S.2d 328, 238 N.E.2d 726). Jurisdiction of appellant's person was not obtained by delivery of the summons to another person and the court lacked jurisdiction of his person unless it was obtained by service of a notice of appearance in the action on his behalf. On February 2, 1968 the Attorney General served a notice of appearance on plaintiffs' attorney which stated, 'this office appears for defendant, J. Burch McMorran in this action and demand that a copy of the complaint and all notices and other papers therein be served on this office.' There being no complaint served with the summons the appellant's attorney did not then know what cause of action might be alleged against McMorran. The complaint was thereafter served on October 28, 1968. Appellant did not answer the complaint but served a notice of motion to dismiss it on November 8, 1968. The Civil Practice Act, contained provisions for special appearances when there were issues as to jurisdiction of the person. (Civil Practice Act, § 237--a). A general appearance on behalf of a party was then equivalent to personal service of a summons upon him and conferred jurisdiction of the person of such party. (Id. § 237). There is no provision for special appearances in CPLR. CPLR 320 subd. (b) () provides:
'Subject to the provisions of subdivision (c), an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion...
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...must be raised by motion to dismiss pursuant to CPLR 3211 or by answer or it is deemed waived (CPLR 320[b]; Foster v. McMorran, 33 A.D.2d 978, 307 N.Y.S.2d 291). The Supreme Court's rationale would require that a defendant who wishes to be relieved from a default must either waive the defen......
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