Opinion
May 7, 1958
Appeal from the Erie Special Term.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Order reversed on the law, with $10 costs and disbursements and motion granted, with $10 costs. Memorandum: The defendant's motion to set aside the substituted service should have been granted. The statutory requirements of section 231 of the Civil Practice Act were not complied with. Whether the failure to file the order and other papers pursuant to said section was a procedural or jurisdictional defect was not passed upon by the Special Term and we do not need to pass upon that question. Special Term denied the motion and excused late filing as a matter of discretion. We consider this error. The statute concededly was not followed and there was no motion for leave to file nunc pro tunc. Whether the Special Term would have power to grant an application to file the order and papers nunc pro tunc was not presented to Special Term and we do not pass upon that question. All concur.