Opn. No. ( 1977 )

HON. ALFRED F. SICA Counsel to the County Clerk, New York County

This is in reply to your letter dated January 19, 1977 wherein you ask for an opinion as to whether an additional or second non-military affidavit of service is required reflecting its execution within 20 days prior to the entry of a default judgment pursuant to section 303 of the Military Law.

In a prior opinion of the Attorney General, August 14, 1964, a copy of which was duly forwarded to you, it was duly established that 50 U.S.C.A., App. section 520 is still in full force and effect; that it supersedes and is paramount to Military Law, § 303 as amended, and that therefore, a county clerk may not enter a judgment by default without requiring an affidavit to be filed therewith showing that the defendant is not in the military service.

Prior to its amendment on September 1, 1963, section 303, subdivision 1, of the Military Law required that a military investigation is to be made within 20 days before the entry of a default judgment. The current section 303 of the Military Law does not so provide.

Since the amended section 303 of the Military Law fails to provide for a 20-day period, it therefore is eliminated. Neither does 50 U.S.C.A. App., section 520 mention such a requirement.

Therefore, in the absence of any express imposition of a time limitation the non-military affidavit minus the 20-day military investigation period becomes a part of the judgment roll to be filed simultaneously at the time of the entry of the default judgment and is sufficient to permit entry of default judgment by the county clerk.

In view of the foregoing it is our opinion that the Federal Soldiers' and Sailors' Civil Relief Act of 1940, codified as 50 U.S.C.A., App., sections 501-590 inclusive, is still in full force and effect and therefore a county clerk may not enter a default judgment without requiring an affidavit to be filed therewith showing that defendant is not in the military service. The said non-military affidavit does not require a 20-day military investigation period before entry of default judgment.