Krooks v. Krooks , 2 Misc. 2d 890 ( 1956 )

Elbert T. Gallagher, J.

Special appearance by defendant for the purpose of moving to set aside service of summons and complaint. It appears that defendant, a resident of New Jersey, had sworn to an information in the Court of Special Sessions, City of Yonkers, charging his wife with kidnapping. On January 4, 1956 defendant attended at that court, for the purpose of testifying as the complaining witness at a hearing on the charge. Service of the summons and complaint in this suit for declaratory relief was effected before the hearing commenced, outside the courtroom. The affidavit of plaintiff’s attorney states that he served defendant’s counsel.

Plaintiff claims that the service is valid because, by initiating the criminal proceeding, defendant brought himself within the provisions of section 227-a of the Civil Practice Act.

The pertinent portion of section 227-a provides as follows: “ The commencement of any action or proceeding in any court of this state by any person not residing in this state shall be deemed a designation by such non-resident person of the attorney appearing in such action or proceeding for such non-resident person as his agent to receive, during the pendency of such action or proceeding, service of process in any court of this state for the determination of any cause of action or claim asserted, either separately or along with any other person or persons, by any person named as a defendant or a respondent in the action or proceeding so brought, against such non-resident either separately or along with any other person or persons, provided the cause of action or claim is one which could have been interposed by way of counterclaim had the action or proceeding been brought in the supreme court.”

This court does not share plaintiff’s view that the act of defendant in swearing to an information constituted the ‘‘ commencement of any action or proceeding ’’ within the meaning of section 227-a of the Civil Practice Act, so as to validate the claimed service on defendant’s attorney. In any event, the criminal proceeding was not one to which the instant suit could have been interposed as a counterclaim, so as to bring the situation within the provisions of that section.

Motion granted. Submit order.