Kurland v. Chernobil

• Decision Date: 22 November 1932
• Citation: 260 N.Y. 254,183 N.E. 380
• Parties: KURLAND et al. v. CHERNOBIL et al.
• Court: New York Court of Appeals Court of Appeals

260 N.Y. 254

183 N.E. 380

KURLAND et al.

v.CHERNOBIL et al.

Court of Appeals of New York.

Nov. 22, 1932.

Action by Ida Kurland and others against Louis Chernobil and George Lehmann. An order of Special Term denying a motion to set aside service of summons and complaint on defendant last named was reversed by the Appellate Division (234 App. Div. 712, 252 N. Y. S. 955), and plaintiffs by permission appeal, and the Appellate Division certifies a question.

Order of Appellate Division affirmed, and question answered.

The following question was certified: ‘Was the service of the summons and complaint herein valid under section 52-a of the Vehicle and Traffic Law?’

Appeal from Supreme Court, Appellate Division, Second department.

Charles Glatzer, David Fink, and Jacquin Frank, all of New York City, for appellant.

Irving I. Goldsmith and Harry A. Talbot, both of New York City, for respondent.

O'BRIEN, J.

In September, 1929, plaintiffs were injured in a collision between automobiles operated in this state respectively by defendants Chernobil and Lehmann. Shortly thereafter this action was instituted, and, although Lehmann was then a resident of this state, Chernobil was made sole party defendant. After Lehmann had become a resident of California, section 52-a of the Vehicle and Traffic Law (Consol. Laws, c. 71) was enacted, and on March 27, 1931, it became effective. A month later Lehmann was named as defendant in a supplemental summons and complaint, and a copy was served upon the secretary of state of New York as Lehmann's assumed representative in attempted compliance with the new statute. The motion to set aside this process was denied at Special Term, but the order of denial has been reversed. Unless the statute is retroactive, it can have no application to the facts before us, and the order of the Appellate Division is right. This is the language of section 52-a:

Ԥ 52-a. Service of summons on residents, who remove from the state prior to commencement of action against them. The operation by a resident of a motor cycle or a motor vehicle on a public highway in this state, or the operation on a public highway in this state of a motor vehicle or motor cycle owned by such resident, if operated by his consent or permission, either express or implied, shall, in all cases where such resident shall have removed from this state, prior to the service of legal process upon him in actions hereafter described, and shall have been absent therefrom for thirty days continuously, be deemed equivalent to an appointment by such resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such resident may be...