Summary
In McCoon v. Schoch (30 A.D.2d 768), the nonresident defendant was sought to be brought under the jurisdiction of the court under section 253 although there too he had been served with a summons without a complaint, and in addition the plaintiffs failed to notify him at the time he was served with the summons that a copy thereof had been served on the Secretary of State. The court held that the plaintiffs' failure to comply with either hinge of the statutory requirements precluded the court from exercising jurisdiction.
Summary of this case from Lederman v. McLean TruckingOpinion
June 27, 1968
Appeal from the Onondaga Trial Term.
Present — Bastow, P.J., Goldman, Del Vecchio, Marsh and Henry, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: In attempted compliance with section 253 Veh. Traf. of the Vehicle and Traffic Law plaintiffs mailed summonses to the Secretary of State on May 3, 1967, in actions against the nonresident defendant to recover damages for injuries sustained by the infant plaintiff in a collision between his bicycle and defendant's automobile on May 6, 1964. They also mailed copies of the summonses to defendant which were received by him on May 8, 1967. Section 253 Veh. Traf. of the Vehicle and Traffic Law provides that service on the Secretary of State "shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons and complaint are forthwith sent by * * * the plaintiff to the defendant by registered mail". Plaintiffs failed to comply with this proviso in two respects. They did not give defendant notice of service of the summonses on the Secretary of State and they did not send a copy of the complaint to him. Jurisdiction of defendant could only be obtained by compliance with the proviso. The Legislature has power to prescribe the ways in which jurisdiction may be acquired by the service of process and service is ineffective if the statutory requirements are not met. (3 Carmody-Wait 2d, New York Practice, § 24:1; Howland v. Giorgetti, 12 A.D.2d 953; Dusminski v. Landenheim, 43 F. Supp. 139.) The court did not acquire jurisdiction of defendant.