Opinion
November 20, 1959
Hetzelt Watson for defendants appearing specially.
Gleason, Fitzpatrick, O'Connor O'Brien for plaintiff.
This is a special appearance by the defendants for an order vacating the service of the summons and complaint herein.
The service of the summons was made pursuant to section 52 Veh. Traf. of the Vehicle and Traffic Law; the complaint is based upon a claim by the plaintiff according to subdivision 3 of section 25-a and section 29 Work. Comp. of the Workmen's Compensation Law.
On February 17, 1956, one George E. Dinsbier was killed in a motor vehicle accident in this State. Thereafter, his administrator sued and recovered a judgment against the defendants in the United States District Court, Western District of New York, which judgment was paid. As the workmen's compensation carrier for decedent's employer, the plaintiff paid to the Chairman of the Workmen's Compensation Board Fund for Reopened Cases the sum of $1,728.13, of which plaintiff seeks repayment under section 29 Work. Comp. of the Workmen's Compensation Law.
Defendants contend "* * * that the within cause of action is not one arising out of an accident or collision involving a motor vehicle within the purview of Section 52 Veh. Traf. of the Vehicle and Traffic Law."
Section 52 Veh. Traf. of the Vehicle and Traffic Law, entitled "Service of summons on nonresidents," provides, in part: "1. The use or operation by a nonresident of a vehicle in this state, or the use or operation in this state of a vehicle in the business of a nonresident, or the use or operation in this state of a vehicle owned by a nonresident if so used or operated with his permission, express or implied, shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while being used or operated in this state * * *".
[MISSING PAGE]
[MISSING PAGE]
[MISSING PAGE]
[MISSING PAGE]
As to the third ground, it appears that at no time during or before the trial, did this defendant move to sever her case from that of the other three codefendants. It is too late to raise this question on appeal.
Accordingly, the judgment should be affirmed.
CAWSE and MARTINIS, JJ., concur.
Judgment affirmed.