Gimbel Bros., Inc. v. Swift
| Decision Date | 09 February 1970 |
| Parties | , 7 UCC Rep.Serv. 300 GIMBEL BROS., INC. v. Cecil SWIFT and Carl Swift. |
| Court | New York City Court |
Joel L. Leef, New York City, for plaintiff.
Martin Gallin, New York City, for defendants.
This case involves a challenge to the validity of a familiar legal device.
Cecil Swift is Carl Swift's father. Carl owed $714.43 to plaintiff. On Aug. 21, 1969, father and son met with plaintiff's attorney. The three of them executed a document of the kind commonly employed by the commercial community in such situations. It is captioned:
--against--
Cecil Swift and Carl Swift, Defendants.
The body of the document is a stipulation that 'the above entitled action is hereby settled' on terms set forth in three numbered paragraphs: (1) defendants appear generally and waive service of the summons; (2) $714.43 is the amount due, to be repaid at the rate of $40 per month (3) in the event of non-payment, plaintiff may file the summons and enter judgment without further notice.
Carl (the son) made some payments and then stopped, whereupon plaintiff filed the summons and entered judgment against Cecil (the father). Cecil now moves to vacate the judgment. He does not deny that he signed the stipulation. Rather, he argues that, because no action was ever commenced and because he was given no notice of default, the stipulation is unconscionable and hence void under UCC 2--302.
In our practice, 'an action is commenced and jurisdiction acquired by service of a summons.' CPLR 304. As the statute suggests, it is the acquisition of jurisdiction over a defendant's person that commences the action. And since jurisdiction may be acquired by consent, Matter of Bauer, 31 A.D.2d 239, 296 N.Y.S.2d 675 (4th Dept.1969), and cases cited therein, it follows that an action may be commenced by consent. The submission to jurisdiction is simultaneously an acknowledgment that the action has been commenced. Here, the stipulation bears a litigation caption and states in its first paragraph that defendant appears 'generally and waives service of summons.' The words are clear. Defendant makes no claim that he was misled. This was the commencement of an action by consent.
Defendant received no notice of default. Had he failed to appear and answer, notice would have been essential. Civil Court Act, Sec. 1402. This case is something else. The stipulation of settlement permits entry of judgment without notice in the event of non-payment, and the stipulation was made after...
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...terms which are unreasonably favorable to the other party." 7-29 Corbin on Contracts § 29.4 (2009) (quoting Gimbel Bros. Inc. v. Swift, 62 Misc.2d 156, 307 N.Y.S.2d 952, 954 (1970); Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 ¶ 12. Our precedent follows the Williams ("absence......
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