The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a motion made on behalf of the defendant.
"1. To dismiss the action and complaint herein because the same fails to state a claim against the defendant upon which relief can be granted.
2. To dismiss the action or in lieu thereof to quash the return of service of summons on the ground that the Court does not have jurisdiction over the persons inasmuch as no guardian ad litem has been appointed for the infant by this Court.
3. To dismiss the action and the complaint herein on the ground that it is in the wrong District because the plaintiffs are aliens, subjects of Poland and the defendant is a citizen of the United States and a resident and inhabitant of the State of Michigan."
This action was brought by Nellie Horzepa, as guardian ad litem of John Horzepa, an infant, and Lawrence Horzepa, individually, as plaintiffs against Michael Dauski.
The action was commenced by the service of the summons and complaint upon the Secretary of State of the State of New York, pursuant to Section 52 of the Vehicle & Traffic Law of the State of New York.
In this action the plaintiff, Nellie Horzepa, as guardian ad litem of John Horzepa, an infant, requests damages for personal injuries alleged to have been sustained as a result of an accident that took place in the City of Rensselaer, State of New York, on the 1st day of September, 1940. Plaintiff, Lawrence Horzepa, sues for damages for medical expense and loss of services as a result of the alleged injuries to his son, John Horzepa.
Heretofore and on or about the 31st day of October, 1940, the same plaintiffs herein brought an action seeking the same relief in the Supreme Court of the State of New York, County of Kings.
The defendant, Michael Dauski, in that action, interposed a counterclaim for his personal injuries, property damage, and for loss of services through the injuries sustained by his wife, Mary Dauski, arising out of the same accident.
The defendant in the Supreme Court action moved for a change of venue to Rensselaer County, the County in which the accident occurred, on the ground that the convenience of material and necessary witnesses would be served by such a change of venue. He also moved that the said action in the Supreme Court, Kings County, be consolidated with an action pending in the Supreme Court, Rensselaer County, and brought by Mary Dauski for personal injuries sustained by her as a result of the accident.
This motion was likewise granted, and the actions are now pending in the Supreme Court, Rensselaer County.
The defendant has not yet filed his answer and the plaintiff, Lawrence Horzepa, on August 21st, 1941, voluntarily dismissed this action, as to him, by filing a notice of dismissal.
Prior to the commencement of this action, Nellie Horzepa, was duly appointed as guardian ad litem of the infant plaintiff, by this Court and the papers filed in the office of the Clerk of ...