Copeland v. Gross , 39 Misc. 2d 619 ( 1963 )

Per Curiam.

On a motion treated by the court as a motion to vacate a default judgment, which attacks the court’s jurisdiction for improper service of the summons and complaint, no conditions may be imposed. The court must, if it cannot summarily dispose of the issue of proper service, set the matter down for a hearing on the traverse; maintain the stay of all proceedings, and provide for the disposition of the motion after deciding the issue of service. (Associates Discount Corp. v. Cabell, 164 N. Y. S. 2d 189). It was error, therefore, for the court below to impose conditions.

Based on the determination herein the order of April 9, 1963 is not reviewed since it was superseded by the order of April 25, 1963 and the appeal as to that order is accordingly dismissed.

The order of April 25, 1963 should be modified by striking therefrom all of the decretal clauses except

(1) Setting the matter down at Special Term Part II for a hearing on the issue of service;

(2) Stay of all proceedings;

(3) The motion to be held in abeyance pending determination of the issue of service,

and, as modified, affirmed, without costs.

The appeal from order of April 9, 1963 should be dismissed, without costs.

Concur — Gold, J. P., Hofstadter and Capozzoli, JJ.

Order of April 25, 1963, modified, etc.

Order of April 9,1963, dismissed, etc.