Opinion
December, 1909.
Thompson Ballentine, for appellants.
Barnett E. Kopelman, for respondents.
These are appeals from judgments dismissing the complaint in each of two similar actions. The returns disclose, in each case, that an original and three alias summons were issued under the Municipal Court Act, sections 26 to 30. Defendants were served by delivery of copies of the alias summons without a copy of the first summons. Defendants appeared specially to object to the jurisdiction on this ground and their objection was sustained.
There is no provision in the Municipal Court Act requiring service of a copy of the original, or first summons, with a copy of an alias, nor was there any such provision in the District Court Act, nor is there in the Code of Civil Procedure, providing for practice in Courts of Justices of the Peace, of which the Municipal Court is a development. Even if, by the use of the word "alias," the Legislature intended to revert, by implication, to common law practice, there is nothing in the old practice books from which it appears that a copy of an alias capias ad respondendum must be delivered to the defendant along with a copy of the first capias. The alias is a writ complete in itself. Formerly each capias was the beginning of a new action (Dun. Pr. 119; Grah. N.Y. Pr. 142); and, under recent decisions, when an alias is served, that service begins the action, except for saving it from the effect of the statute of limitations, when the action is deemed to have been begun at the time of delivery for service of the first summons (Harkow v. New York City R. Co. 121 A.D. 194), and except to save papers which have been prepared to accompany the first summons. Code Civ. Pro. § 2883, Throop's note. After the last day upon which service of the first summons may be had, the only value of the first summons is to prove that the alias was issued within the required period and to establish the date at which it may be deemed served in certain cases. This proof becomes available to defendant when the summons is returned. The law is correctly stated in Lawrence v. Bernstein, 46 Misc. 608.
GIEGERICH and LEHMAN, JJ., concur.
Judgments reversed and new trials ordered, with costs to appellants to abide event.