Opinion
285 A.D. 500 138 N.Y.S.2d 215 In the Matter of JOSEPHINE SKOTAK, Respondent. v. CHARLES S. JACOBOWITZ COMPANY, Appellant. Supreme Court of New York, Fourth Department. March 9, 1955
APPEAL from a judgment of the Onondaga County Court in favor of petitioner, entered March 12, 1954, upon an order of said court (BREED, J.). The notice of appeal stated that appellant appealed from several orders of said court, including a determination that the court had jurisdiction of the subject matter and of the person of appellant, a corporation. On December 4, 1953, a judgment in favor of petitioner against a brewing company was entered in Onondaga County. Subsequently execution was issued thereon pursuant to which the Sheriff levied on certain property, located on premises of the judgment debtor, but allegedly owned by appellant. On December 14, 1953, an attorney filed with the Sheriff a notice of the appellant's claim to such property, stating that appellant had retained the attorney 'for the purpose of filing this claim with the Sheriff'. On the following day the petition and notice of motion in a special proceeding to determine the appellant's claim were served on the attorney. The attorney was not an officer of appellant and had not been designated to accept service thereon. At the hearing in the County Court appellant moved to set aside such service and to dismiss the petition. On December 22, 1953, the court denied such motion and thereafter ordered judgment for petitioner.
COUNSEL
James M. Sullivan for appellant.
Perry B. Rausch for respondent.
Per Curiam.
The motion made on special appearance in this proceeding under section 696 of the Civil Practice Act, to vacate the service of petition and notice of motion should have been granted. The Charles S. Jacobowitz Company, a domestic corporation, was not served. Service of the papers upon its attorney, who filed with the Sheriff a notice of claim of title, was not service upon the company. (Civ. Prac. Act, § 228; Rules Civ. Prac., rule 21.) The attorney was not a person who could receive service of process to commence a special proceeding, and the filing by the attorney, on behalf of the Jacobowitz Company, of notice of claim was not the commencement of the special proceeding thereafter initiated by the petitioner. Notice of the limitation of the attorney's employment was given in the notice of claim itself. The notice stated that the attorney's firm had been retained by the Jacobowitz Company 'for the purpose of filing this claim with the Sheriff of Onondaga County.' Moreover, the Jacobowitz Company was not a resident of Onondaga County and the Onondaga County Court was without jurisdiction of the person of the company (Civ. Prac. Act, § § 67, 68). No jurisdiction of the person of the corporation was acquired by the Onondaga County Court and jurisdiction of the person was not waived but, on the other hand was promptly challenged.
It is unnecessary to our decision to determine whether any County Court has jurisdiction of a special proceeding under section 696 of the Civil Practice Act. Such question was not raised and we do not here decide it. We do, however, call attention to the fact that section 67 of the Civil Practice Act does not include this proceeding as one of which County Courts have jurisdiction and we are not aware of any other statute which gives such courts jurisdiction. In at least two cases, County Courts have taken jurisdiction. (N. B. I. Corp. v. Keller, 175 Misc. 231 ; Edwards v. Walker, 162 Misc. 96.) In neither case was the jurisdictional question raised. The Municipal Court of New York has held it has jurisdiction in such a proceeding. (Isabelle Properties v. Edelman, 164 Misc. 192; Long Island Tinsmith Supply Corp. v. Ramberg & Son, 172 Misc. 158.) We are not concerned with the question of jurisdiction of the Municipal Court of New York or the basis of those decisions. In Dunn v. Seidenschwarz (173 Misc. 495) the Supreme Court, in commenting upon Edwards v. Walker (supra), raised a doubt as to the jurisdiction of County Courts.
The order and judgment appealed from should be reversed and the motion of claimant-appellant, on special appearance, to vacate and set aside service of petition and notice of motion granted and proceeding dismissed.
All concur. Present--MCCURN, P. J., VAUGHAN, KIMBALL, WHEELER and VAN DUSER, JJ.
Judgment and order reversed on the law and facts, with costs, and proceeding dismissed, with costs.