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TWENTIETH CENTURY-FOX FILM CORPORATION v. ALICE DUPPER (11/25/69)

November 25, 1969

TWENTIETH CENTURY-FOX FILM CORPORATION, RESPONDENT,
v.
ALICE DUPPER, APPELLANT



Concur -- Eager, J. P., Capozzoli, McGivern, Nunez and McNally, JJ.

CPLR 303 does permit the commencement of a separate action by service of a summons on the attorney of a nonresident during the pendency of an action; and for this purpose, i.e., the starting of a fresh action, the attorney is designated as agent for service. At best, we have here an attempt at substituted service, not countenanced by statute. Personal delivery is the only method when a statute directs service of a process and is silent as to method. (See, 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2103-04; 3 Carmody-Wait 2d, New York Practice, § 24:49; Stevens v. State of New York, 277 App. Div. 418.)

Disposition

Order entered August 23, 1968, denying motion to vacate, unanimously reversed, and order and judgment (one paper) entered October 31, 1968, directing declaratory judgment in favor of plaintiff corporation, vacated, on the law, unanimously, with $30 costs and disbursements to appellant, and complaint dismissed.

19691125

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