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21 N.Y.S. 452

Lassen v. Aronson

The Superior Court of the City of New York and Buffalo

Decided October 15, 1892

The Superior Court of the City of New York and Buffalo · decided 1892-10-15

Action by Alexander 0. Lassen against Albert Aronson, president of the New York Concert Company, a stock corporation, for the penalty prescribed by Laws 1890, c. 564, § 29, which requires a stock corporation to keep certain books open for the inspection of stockholders and creditors, and provides that any officer or agent who shall neglect or refuse to exhibit the same, or to allow them to be inspected, shall forfeit to the party injured a penalty of $50 for every such…

Decided 1892-10-15

GILDERSLEEVE, J.

¶1The failure to comply with the provisions of section 1897 of the Code1 is fatal to the validity of the service of the summons, and leaves the court without jurisdiction over the person of the defendant. The defect was not remedied by the defendant’s appearance, for the reason that it did not appear upon the face of the summons. Defendant has leave to withdraw his notice of appearance.

¶2Summons set aside, and complaint dismissed, with costs.

¶3 Code Civil Proc. § 1897, provides that, in an action to recover a penalty or forfeiture given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of thé summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, and, in addition, such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given in different sections thereof for different acts or omissions.

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