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DONALD R. MAXWELL v. FIRST PORT JEFFERSON CORP. (02/03/69)

February 3, 1969

DONALD R. MAXWELL, RESPONDENT-APPELLANT,
v.
FIRST PORT JEFFERSON CORP., APPELLANT-RESPONDENT



Cross appeals, as limited by appellants' briefs, from portions of an order of the Supreme Court, Suffolk County, dated June 6, 1968.

Christ, Acting P. J., Brennan, Hopkins, Benjamin and Martuscello, JJ., concur.

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).

19690203

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