Vander v. Casperson
| Decision Date | 18 May 1962 |
| Citation | 228 N.Y.S.2d 641,16 A.D.2d 881 |
| Parties | John William VANDER, Appellant, v. John E. CASPERSON and Ray J. Boorman, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Cohen, Gould, Farbo & Gleiner, Rochester (Max Cohen, Rochester, of counsel), for appellant.
Strang, Wright, Combs, Wiser & Shaw, Rochester (Ellsworth Van Graafeiland, Rochester, of counsel), for respondents.
Before BASTOW, J. P., and GOLDMAN, HALPERN, McCLUSKY and HENRY, JJ.
Plaintiff appeals from an order denying his motion for summary judgment. The action is based on a judgment rendred by the Circuit Court of the State of Florida in plaintiff's favor, against the defendants. Defendants allege that no summons or other process was served upon them and that the Florida Court lacked jurisdiction to render judgment against them. On March 28, 1958 the Sheriff of Broward County, Florida, filed returns in the Circuit Court in Dade County, Florida, certifying service of summonses in the action of the plaintiff against the defendants, on the defendants, in accordance with requirements of Florida law. Defendants did not appear in the action. On September 8, 1958, judgment by default was entered in favor of plaintiff against defendants for $5,000. Thereafter defendants appeared specially in the court which rendered the judgment, through their attorneys, for the limited purpose of challenging the jurisdiction of the court over the person of the defendants and to set aside the default theretofore entered on the sole ground that the court lacked jurisdiction over the defendants for the reason that they had not been properly served. The Circuit Court made a finding that 'Personal service was effected upon both defendants so as to give the Court personal jurisdiction of the parties' and on March 27, 1959, 'Ordered and Adjudged that the defendants' motion to set aside the default be, and the same is hereby denied.' Defendants appealed from such order to the District Court of Appeal which court on December 17, 1959, affirmed the order in the following per curiam opinion, 116 So.2d 653: 'Affirmed upon authority of the rule stated in Barnes v. Willis, 65 Fla. 363, 61 So. 828; Clements Naval Stores Co. v. J. S. Betts Co., 85 Fla. 49, 95 So. 126; Golden Gate Development Co. v. Ritchie, 140 Fla. 103, 191 So. 202; McIntosh v. Wibbeler, Fla.1958, 106 So.2d 195; Mitchell v. Brown, Fla.App.1959, 114 So.2d 178.' The cases cited state the rule that it requires clear and convincing proof to overcome...
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...upon extrinsic proof. (See O'Donoghue v. Boies, 159 N.Y. 87, 98, 99, 53 N.E. 537, 539, 540, and cases cited therein; Vander v. Casperson, 16 A.D.2d 881, 228 N.Y.S.2d 641.) That jurisdiction was assumed, but not proved, would warrant the impeachment of the decree made upon such incorrect ass......
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Schwamm v. Davis
...prejudice.' This determination appears to be upon the merits and is res judicata and dispositive of this appeal. (See Vander v. Casperson, 16 A.D.2d 881, 228 N.Y.S.2d 641, affd. 12 N.Y.2d 56, 236 N.Y.S.2d 33, 187 N.E.2d ...
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L & W Air Conditioning Co., Inc. v. Varsity Inn of Rochester, Inc.
...(of jurisdiction) before the matter was decided by the Oregon court' and therefore the issue was 'res judicata'. In Vander v. Casperson, 16 A.D.2d 881, 228 N.Y.S.2d 641, the Appellate Division, Fourth Department, discussed the principles relating to the recognition of judgments rendered by ......