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Maxwell v. First Port Jefferson Corp.

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1969
31 A.D.2d 813 (N.Y. App. Div. 1969)

Opinion

February 3, 1969


Cross appeals, as limited by appellants' briefs, from portions of an order of the Supreme Court, Suffolk County, dated June 6, 1968. Order modified, on the law, by (1) striking out the first and fourth ordering paragraphs thereof and (2) substituting therefor a provision granting the motion to vacate the judgment in favor of plaintiff against defendant which was entered on November 5, 1965. As so modified, order affirmed, with $10 costs and disbursements to defendant. The findings of fact below have not been affirmed. We construe the action to be one in quantum meruit. As such, the clerk had no authority to enter the default judgment ( Geer, Du Bois Co. v. Scott Sons Co., 25 A.D.2d 423; CPLR 3215, subds. [a], [e]). Moreover, we are of the opinion that the default judgment should have been vacated for lack of jurisdiction of defendant (CPLR 5015, subd. [a], par. 4). Christ, Acting P.J., Brennan, Hopkins, Benjamin and Martuscello, JJ., concur.


Summaries of

Maxwell v. First Port Jefferson Corp.

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1969
31 A.D.2d 813 (N.Y. App. Div. 1969)
Case details for

Maxwell v. First Port Jefferson Corp.

Case Details

Full title:DONALD R. MAXWELL, Respondent-Appellant, v. FIRST PORT JEFFERSON CORP.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 3, 1969

Citations

31 A.D.2d 813 (N.Y. App. Div. 1969)

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