Opinion
February 24, 1961
Donner, Kinoy, Perlin Piel ( Sanford M. Katz of counsel) for plaintiff.
David A. Botwinik ( Fink Pavia of counsel), for defendant Vibelsport appearing generally, and for the individual defendants appearing specially.
Plaintiff moves for an order directing the entry of judgment of default on the second cause of action, striking out the first affirmative defense, and for discovery and inspection. Plaintiff appears to argue, on the one hand, that the individual defendants, against whom alone the second cause is directed, have deliberately failed to answer the complaint, purportedly to defeat jurisdiction and, on the other hand, that they cannot defeat jurisdiction since in plaintiff's view the attachment [see 10 Misc.2d 660, revd. 5 A.D.2d 863, 6 A.D.2d 676, 8 A.D.2d 810] and the service by publication are effective against them by reason of section 222-a of the Civil Practice Act. The members of a partnership, and particularly those members of a foreign partnership who are foreigners, are not brought in by service on the partnership or upon the basis of a pleading as simplified and permitted by the provisions of section 222-a. If, as plaintiff urges, service upon or appearance by the partnership embraces its members individually, then the answer which, upon its face at least, was interposed on behalf of the partnership, is an answer for all defendants, and again there is no default.
The defense by which it is sought to preserve the claim of absence of jurisdiction over the person is interposed pursuant to subdivision 4 of section 237-a of the Civil Practice Act. It is sufficient on its face and not vulnerable to a motion made pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice. It may well be that there had been a general appearance which vitiated the prior attempts to appear specially, followed by adjudications which bar further litigation of the issue of jurisdiction upon any ground, but this is not the ground urged for dismissal.
The application for discovery and inspection is untimely. For the reasons indicated, the motion is in all respects denied.