
    David M. Jacobs and David Harris, Respondents, v. Edward L. White and Russell B. Reid, Appellants.
    First Department,
    October 23, 1914.
    Process—service on non-resident by publication inaction to recover money only —effect of voluntary appearance — costs — recovery less than $1,000 in action in Supreme Court, county of Mew York.
    Where an action is brought against non-resident defendants to recover judgment for a sum of money only, and the plaintiff has not obtained an attachment, no jurisdiction is obtained by service of the summons without the State, pursuant to an order for publication, unless the defendant voluntarily appears.
    Although after such service the defendant voluntarily appears, the appearance is not equivalent to personal service within the county of New York for the purpose of determining whether the plaintiffs were precluded from taxing costs, on the theory that the action might have been brought in the City Court under the provisions of subdivision 5 of section 3228 of the Code of Civil Procedure. Hence, the plaintiffs are entitled to recover costs although the recovery was less than $1,000. McLaughlin, J., dissented, with opinion.
    Appeal by the defendants, Edward L. White and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of July, 1914, denying defendants’ motion for a retaxation of costs.
    
      Morris Grossman, for the appellants.
    No appearance for the respondents.
   Laughlin, J.:

This action was brought for the conversion of merchandise amounting in value to the sum of $133.71, and the plaintiffs recovered the amount claimed, together with costs, which were taxed in their favor. The defendants moved for retaxation of costs.

It appears that the defendants are both non-residents of the State of New York and reside in the State of New Jersey, and that they have no property or place of business within this State. The plaintiffs attempted to serve the defendants by publication, büt they obtained no attachment. Pursuant to the order for service by publication, the summons and complaint were served on one of the defendants without the State. Thereupon the defendants voluntarily appeared and served an answer. The action having been brought to recover a judgment for a sum of money only against non-residents of the State, no jurisdiction was obtained by the service without the State (Haase v. Michigan Steel Boat Co., 148 App. Div. 298), and the only jurisdiction obtained was by the voluntary personal appearance of the defendants.

The theory upon which the motion for retaxation for the costs was made by the defendants, and upon which the appeal from the order denying the motion is sought to be successfully sustained, is that by virtue of the provisions of section 424 of the Code of Civil Procedure the voluntary appearance of the defendants is equivalent to personal service in the county of New York. The voluntary appearance was equivalent to personal service for the purpose of conferring jurisdiction (Reed v. Chilson, 142 N. Y. 152); but such a voluntary appearance is not equivalent to personal service within the county in which the action is brought for the purpose of determining whether, under the provisions of section 3228, subdivision 5, of the Code of Civil Procedure, the plaintiffs were precluded from taxing costs on the theory that the action might have been brought in the City Court. The .sole test prescribed by the provisions of said subdivision 5 with respect to whether the action could have been brought in the City Court is whether service has been actually made in the county of New York. (Moraff v. Kohn, 157 App. Div. 648.) Service was not actually made within the county of New York, and the voluntary appearance of the defendants in the action is not, for the purposes of the provisions of said subdivision 5, equivalent to actual personal service within the county of New York. It, therefore, follows that the plaintiffs were entitled to recover costs against the defendants, notwithstanding the fact that the recovery was for less than the sum of $1,000.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke and Scott, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

This action was brought in the Supreme Court, the venue being laid in the county of New York, to recover damages for the conversion of personal property alleged to have been of the value of $133.71. The plaintiff recovered $101.42, together with costs and disbursements, which were taxed at $137.32, making in all a judgment of $238.74. The defendants moved for a retaxation of costs on the ground that under subdivision 5 of section 3228 of the Code of Civil Procedure plaintiffs were not entitled thereto, the recovery having been less than $1,000. The motion was denied and they appeal.

It appeared upon the motion for retaxation that both the defendants are non-residents and have no property or place of business within the State of New York. The plaintiffs attempted to serve the defendants by publication, but obtained no attachment, and were, therefore, unable to get jurisdiction. The defendants, however, voluntarily appeared in the action and interposed an answer.

When they voluntarily appeared this had the same effect as though the summons had been personally served upon them. (Code Civ. Proc. § 424.) Subdivision 5 of section 3228 of the Code of Civil Procedure provides, among other things, that in all actions brought in thfe Supreme Court, triable in the county of New York, which feould have been brought, except for the amount claimed, in the City Court of the city of New- York, and in which defendant shall have been served with process within the county of New York, the plaintiff can recover no costs or disbursements unless he shall have recovered $1,000 or more. So far as appears, at the time this action was commenced, one could not have been brought either in the Supreme Court or in the City Court (since the defendants were non-residents and had no property in the State), unless the defendants chose voluntarily to appear. This they did, and' after such voluntary appearance the situation, so far as costs were concerned, was precisely the same as if personal service had been made in the city of New York. The question is whether or not the subdivision of section 3228 applies to a case in which defendant could not have been personally served with process, but who voluntarily appeared.

I think section 424 of the Code of Civil Procedure and subdivision 5 of section 3228 should be given the effect intended to be accomplished by them, which was, at least so far as the subdivision of the latter section is concerned, to relieve the Supreme Court in New York county by compelling, as far as practicable, actions to be brought in the City Court of New York if within its jurisdiction. (Hubbard v. Heinze, 145 App. Div. 828.) This action could just as well have been brought in the City Court as in the Supreme Court, because in neither case could the court obtain jurisdiction unless the defendants voluntarily appeared. To award costs against them because they did voluntarily appear is not only to penalize them for such appearance, but to destroy what seems to me the plain intent of the statute.

I dissent, therefore, from an affirmance of the order appealed from and vote to reverse the order and grant the motion for a retaxation.

Order affirmed, with ten dollars costs and disbursements.  