Opinion
May 22, 1962
Order, entered on June 22, 1960, unanimously modified on the law and on the facts to provide that the defendant Martin Anderson, doing business under the trade name and style of Anderson Anderson, shall have 10 days after service of order hereon with notice of entry to serve an answer to the complaint herein, or if he has already answered then he shall have a like period of time to serve an amended answer to the complaint herein; and that in such answer or amended answer, as the case may be, he may plead as a defense the alleged invalidity of the service of the summons upon him and the consequent lack of jurisdiction of the court over his person; and the said order, as so modified, affirmed, without costs. Under the circumstances here, the issue of fact as to personal service should not have been resolved upon the affidavits. While, ordinarily, the proper procedure would require the determination of such issue promptly by hearing at Special Term or before a Referee (see Hammond v. Hammond, 9 A.D.2d 615), under the special circumstances here and particularly in view of the considerable delay since the making and determination of the motion, the issue may properly be left to be raised by way of defense in the defendant's answer and for determination at the trial. (See Civ. Prac. Act, § 237-a, subd. 3, par. [c]; subd. 4.) Settle order on notice.
Concur — Breitel, J.P., Valente, Stevens, Eager and Steuer, JJ.