Opinion
June 27, 1955.
In an action against copartners for goods sold and delivered, defendants appeal from an order denying their application to vacate the substituted service upon them and the judgment entered in plaintiff's favor pursuant thereto, and for other relief. Order reversed, with $10 costs and disbursements, defendants' application to open their default, vacate the judgment and permit them to answer or otherwise move with respect to the complaint herein granted, and order for the examination of defendant Michael Masone in proceedings supplementary to judgment vacated. Defendants shall serve their answer, or otherwise move with respect to the complaint, within ten days after service of a copy thereof upon their attorney, such service to be effected within ten days after the entry of the order hereon. Pursuant to an order granted December 3, 1941, the action was commenced by the alleged substituted service of process on December 5, 1941, upon defendant Michael Masone. Proof of said service was filed on December 6, 1941. None of the other defendants was served, and none of the defendants answered. Upon application to the clerk of the court, judgment by default in favor of the plaintiff and against the defendants was entered on December 27, 1941. Because of the fact that thirty days had not expired since the filing of said proof of service, the entry of the judgment herein was premature, rendering it irregular and voidable. (Civ. Prac. Act, § 231; Winter v. Winter, 256 N.Y. 113, 116.) In view of the proof that at least one of the codefendants knew of the existence of the judgment "many years ago", as respects this question, the Special Term, in the exercise of discretion, could properly refuse relief because of laches. However, as urged for the first time on this appeal, at the time the default judgment herein was entered in 1941 by the clerk, such a judgment founded upon nonpersonal service, as herein, could only be granted upon application to the court or a judge thereof. (Civ. Prac. Act, § 493.) Since the clerk acted without jurisdiction, the judgment entered herein is void. ( Bouker Contr. Co. v. Neale, 161 App. Div. 617. ) Want of jurisdiction may be asserted at any time. ( Matter of Doey v. Howland Co., 224 N.Y. 30, 38; Marshall v. Marshall, 281 App. Div. 976.) Accordingly, neither defendants' laches nor their failure to raise the jurisdictional question below is a bar to the granting of relief by this court. Since the papers on appeal do not clearly disclose whether a complaint was served herein, service of a copy thereof has been directed as afore-mentioned. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur. [See post, p. 1012.]