Opinion
April 20, 1967
Order entered October 25, 1966, unanimously reversed, on the law, and the facts, without costs or disbursements, the motion and cross motion denied without prejudice, and the matter remanded for service of pleadings. A jurisdictional objection raised by a defendant is preserved though coupled with a defense on the merits and is not lost because also joined with a counterclaim reflecting the same issues as the defense. ( Katz Son Billiard Prods. v. Correale Sons, 26 A.D.2d 52.) A jurisdictional challenge may be lost, however, where counterclaims are joined with cross claims against nonresidents and jurisdiction over the latter is obtained in the same manner in which personal jurisdiction over the defendant was obtained and the nonresidents appear and raise no objection. In the face of this issue of jurisdiction and the circumstance that resolution of the action depends upon proof of facts outside the note in suit which are not satisfactorily defined in the papers on this motion pursuant to CPLR 3213, the plaintiff is directed to serve and file his complaint within 20 days from the date of entry of the order herein and the defendant may interpose his answer asserting lack of jurisdiction as a defense.
Concur — Botein, P.J., Stevens, Eager, Tilzer and Rabin, JJ.