Opinion
April, 1926.
Order denying motion to set aside and vacate service of summons and complaint reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon authority of Person v. Grier ( 66 N.Y. 124); Parker v. Marco (136 id. 585); Matthews v. Tufts (87 id. 568); Goldsmith v. Haskell ( 120 App. Div. 403); Powell v. Pangborn (161 id. 453); Howe v. Van Heusen (210 id. 796); Sampson v. Graves (208 id. 522). Kelly, P.J., Jaycox and Manning, JJ., concur; Kapper and Lazansky, JJ., dissent upon the ground that defendant, having invoked the judicial power of the State by bringing an action against plaintiff, who is a resident of the State, should not be permitted to avoid it when plaintiff seeks to sue him on a cause of action which could not be the subject of a counterclaim to defendant's cause of action. The case presents an exception to the rule.