Summary
In Hubbard v. Heinze (145 App. Div. 828) the opinion sets forth that defendant was a resident of New York county and could have been served therein.
Summary of this case from Moscahlades v. PetriOpinion
July 7, 1911.
Rosenthal Heermance [ Jacob Ansbacher of counsel], for the appellant.
Paul Armitage, for the respondent.
This is in form an appeal from an order denying defendant's motion for a retaxation of costs, but in effect challenges the plaintiff's right to recover costs at all.
The action is for assault. The defendant was a resident of New York county and could have been served therein, but hearing that plaintiff proposed to commence an action, he voluntarily appeared. The plaintiff recovered judgment for less than $500. The case was one which could have been brought, except for the amount claimed, in the City Court of the city of New York, and the defendant's contention is that since the recovery was less than $1,000 the plaintiff is entitled to recover no costs. (Code Civ. Proc. § 3228, subd. 5.) The plaintiff, however, insists that the subdivision above referred to applies only when the defendant shall have been "personally served with process," which was the language of the section of the Code when this action was begun in September, 1909. (Laws of 1904, chap. 557.) The language of the present section is "served with process." (Laws of 1910, chap. 574.) So far as concerns the present appeal we do not consider that this change in phraseology is significant. The question is whether or not the subdivision of section 3228 applies to a case in which the defendant was present in the county and could have been personally served with process but was not served because he voluntarily appeared. Section 424 of the Code of Civil Procedure provides that "A voluntary general appearance of the defendant is equivalent to personal service of the summons upon him." We think that this section should be given its full significance in the present case. The purpose of the statute (§ 3228, subd. 5) was to relieve the congested calendars of the Supreme Court in New York county by compelling, so far as practicable, actions to be brought in the City Court of New York if within its jurisdiction. In considering its language the evil sought to be remedied must be kept in mind. ( Seymour v. Wheeler, 137 App. Div. 52.) It needs no citation of authority to sustain the familiar rule that where a case is brought within the intention of the framers of a statute it is within the statute, although by a technical interpretation it is not within its letter. Clearly the present case falls within the intent of the subdivision referred to and must be considered as governed by it.
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.