Daley v. Lubich , 34 Misc. 2d 187 ( 1962 )

Walter R. Hart, J.

Process in the instant action was served on defendant pursuant to an order for substituted service. The instant motion is made pursuant to section 237-a of the Civil Practice Act, to set aside the service on the ground that defendant is not subject to such service within the meaning of section 230 of the Civil Practice Act. The reason urged is that defendant is serving in the United States Air Force, stationed in Georgia, and is not amenable to process by substituted service. The contention is valid. (Lerman v. Copperman, 183 Misc. 352; Thompson v. Mundheim, 180 Misc. 1002, affd. 266 App. Div. 1001.)

Opposition to the motion is predicated on the contention that counsel for the parties executed a stipulation extending defendant’s time to appear or answer; that that portion of the stipulation extending defendant’s time “ to make any motion with respect to the complaint” was stricken. It is plaintiffs’ contention that the parties in the stipulation specifically agreed “ that there was to be no motions made by the defendant against the summons and complaint ” precluding the instant motion.

While it might be urged that defendant by the stipulation waived his right to address any motions to the form or sufficiency of the complaint, he did not by the stipulation waive his right to contest the service or the jurisdiction of the court since the stipulation did extend his time to appear or answer. The instant motion is not addressed to the complaint but to the process. Accordingly, the motion is granted.