MUSLUSKY v. LEHIGH VALLEY COAL CO, N.Y., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Charles Goldzier and Joseph Levy for appellant. Peter C. Mann for respondent.

Judges

Cuthbert W. Pound

See more information ...

Smart Summary

Factual and Procedural Background

The defendant, Lehigh Valley Coal Company, was served with a summons delivered to its assistant secretary. The defendant's attorneys filed a notice of special appearance solely to demand a copy of the complaint, stating this was to understand the nature of the cause of action and to consider any jurisdictional objections. However, no copy of the complaint was served within the prescribed time. The defendant then moved to dismiss the complaint under section 480 of the Code of Civil Procedure, which allows dismissal if the plaintiff fails to serve a copy of the complaint.

The motion was denied by the Special Term on the grounds that the defendant’s special appearance limited it to challenging only the court’s jurisdiction over its person. The defendant appealed to the Appellate Division, attempting to extend its special appearance to include the appeal. The Appellate Division reversed the Special Term order without opinion and dismissed the complaint. The plaintiff then appealed to the Court of Appeals, with the defendant again appearing specially to support the judgment.

Legal Issues Presented

Whether a defendant appearing specially for the purpose of demanding a copy of the complaint may also move to dismiss the complaint under section 480 of the Code of Civil Procedure.
Whether a special appearance can be extended to motions or appeals not related to challenging the court’s jurisdiction over the defendant’s person or property.
The proper interpretation and scope of a special appearance in relation to jurisdictional challenges and procedural rights under the Code of Civil Procedure.

Arguments of the Parties

Defendant's Arguments

The defendant argued it was entitled to demand a copy of the complaint without submitting to the court’s jurisdiction generally.
By serving a special appearance solely to obtain the complaint, the defendant contended it could subsequently move to dismiss the complaint under section 480 for failure to serve the complaint.
The defendant attempted to extend the scope of its special appearance to include motions and appeals related to dismissal of the complaint.

Plaintiff's Arguments

The plaintiff maintained that a mere demand for a copy of the complaint does not constitute an appearance, general or special, that permits motions beyond jurisdictional challenges.
The plaintiff argued that the defendant’s motion to dismiss and appeal were improper because no jurisdictional challenge had been made.
The plaintiff asserted that the defendant’s attempt to obtain dismissal without submitting to jurisdiction was an illogical extension of the special appearance doctrine.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Davis v. Cleveland, C., C. St. L. Ry. Co., 217 U.S. 157	Summons is served to bring defendant under court’s jurisdiction; no binding judgment without jurisdiction.	Supported the principle that jurisdiction must be obtained before judgment.
Big Vein Coal Co. v. Read, 229 U.S. 31	Same as Davis: jurisdictional principles regarding summons and judgment.	Reinforced the requirement of jurisdiction before judgment.
Goldey v. Morning News, 156 U.S. 518	Special appearance is only to raise jurisdictional questions; general appearance waives jurisdictional objections.	Clarified the limited scope of special appearances.
Reed v. Chilson, 142 N.Y. 152	General appearance waives jurisdictional objections; special appearance limited to jurisdictional issues.	Supported the court’s reasoning on appearance types and waivers.
Toledo Rys. Light Co. v. Hill, 244 U.S. 49	After motion to vacate service on special appearance, defendant may plead jurisdictional defense in answer.	Illustrated procedural posture for jurisdictional challenges.
Littauer v. Stern, 177 N.Y. 233	General appearance must be made in a prescribed manner under Code Civ. Pro. § 421.	Defined the formal requirements for general appearances.
Farmer v. Nat. Life Assn. of Hartford, 138 N.Y. 265	Same as Littauer: formalities of general appearances.	Supported court’s interpretation of appearance formalities.
Merchants Heat Light Co. v. Clow Sons, 204 U.S. 286	Disapproved broad interpretations of special appearances.	Used to reject defendant’s expansive use of special appearance.

Court's Reasoning and Analysis

The court analyzed the nature and limitations of a special appearance, emphasizing that it exists solely to contest the court’s jurisdiction over the defendant’s person or property. The defendant’s attempt to use a special appearance merely to demand a copy of the complaint did not constitute an appearance with jurisdictional effect. The court underscored that the summons is the mechanism to bring the defendant under jurisdiction, and without submitting generally, the defendant cannot take procedural steps such as moving to dismiss the complaint under section 480.

The court rejected the defendant’s extension of the special appearance doctrine to permit motions and appeals unrelated to jurisdictional challenges. It held that the defendant’s demand for a copy of the complaint was no more than a request lacking legal efficacy to affect the proceeding. The defendant’s motion to dismiss and subsequent appeal were improper because no jurisdictional challenge had been made, yet the complaint was dismissed.

The court noted that recent lower court decisions had misinterpreted section 479 of the Code of Civil Procedure by allowing defendants to demand a complaint copy and then obtain dismissal without general appearance, which the court found inconsistent with the cohesive procedural framework.

Holding and Implications

The judgment of dismissal was reversed and the order of the Special Term denying the motion to dismiss was affirmed, with costs awarded to the plaintiff in this court and the Appellate Division.

The decision directly reinstates the complaint and clarifies that a special appearance is limited strictly to jurisdictional challenges. It prevents defendants from circumventing the procedural requirements by using special appearances to demand complaint copies and then dismiss the complaint without submitting to jurisdiction. No new precedent beyond this clarification was established.

Show full summary ...

FRANK MUSLUSKY, Appellant, v. LEHIGH VALLEY COAL COMPANY, Respondent.

POUND, J.

The summons was delivered to the assistant secretary of defendant. Defendant, by its attorneys, served a notice of special appearance which contained a demand for a copy of the complaint. The special appearance was stated in the notice to be for the sole purpose of obtaining such copy "in order that defendant may be advised of the nature of the alleged cause of action sued upon and may thereafter take such objections to the jurisdiction of this court as it may be advised." No copy of the complaint was served. When the time for the plaintiff to serve the same expired, defendant moved to dismiss the complaint under section 480, Code of Civil Procedure, which reads as follows:

"If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint."

In the notice of motion, defendant's attorneys added to their former special appearance an appearance "for the purposes of this motion." The motion was denied on the ground that the defendant, having appeared specially, could attack only the jurisdiction of the court. over its person. An appeal was taken by defendant to the Appellate Division from the order entered on said motion. In the notice of appeal, defendant's attorneys again attempted to extend their former special appearance by including therein the words, "for the purposes of this appeal." The order of the Special Term was reversed by a unanimous court without opinion, and the complaint was dismissed. From the judgment entered thereon this appeal was taken, and again the attorneys for the defendant "appear specially for the purposes stated in the notice of appeal and no other" to support the judgment appealed from.

The theory of special appearances has been pushed by the defendant to an illogical extreme. A summons is served in order to bring the defendant under the authority of the court. Until jurisdiction has thus been obtained, no binding judgment can be entered. ( Davis v. Cleveland, C., C. St. L. Ry. Co., 217 U.S. 157; Big Vein Coal Co. v. Read, 229 U.S. 31.) When the summons has been served on a defendant who does not intend to submit himself to the jurisdiction of the court over his person, he may elect to remain out of court but he need not wait until the entry of judgment against him by default. He may appear specially. ( Goldey v. Morning News, 156 U.S. 518; Reed v. Chilson, 142 N.Y. 152.) The special appearance is recognized only for the purpose of raising the question whether the court has obtained jurisdiction over the defendant personally or through his property. If the defendant serves a general notice of appearance, his right to assail the claim of jurisdiction over his person is waived. (Code Civ. Pro. § 421; Reed v. Chilson, supra.) If a motion to vacate the service of the summons on a special appearance is first made, the defendant may by answer iterate the plea to the jurisdiction. ( Toledo Rys. Light Co. v. Hill, 244 U.S. 49.)

The complaint reveals the merits of the action. To obtain a copy thereof, when it is not served with the summons, the defendant's attorney must "serve upon the plaintiff's attorney a written demand" which "may be incorporated into the notice of appearance." (Code Civ. Pro. § 479.) A mere demand for a copy of the complaint is not an appearance, either general or special. Defendant's general appearance can be made only in the manner indicated in section 421 of the Code ( Littauer v. Stern, 177 N.Y. 233, 236; Farmer v. Nat. Life Assn. of Hartford, 138 N.Y. 265; disapproved in Goldey v. Morning News, 156 U.S. 518, 523; Merchants Heat Light Co. v. Clow Sons, 204 U.S. 286, 290), and its special appearance can be made only for the purposes hereinbefore indicated.

Recent decisions of the lower courts which recognize the right of a defendant to demand a copy of the complaint without appearing generally in the action interpret section 479 of the Code of Civil Procedure as if it introduced a deviation from the direct course of the law suit. The section is a part of one harmonious whole. By giving to a single sentence the effect of an innovation, this defendant has been allowed not only to demand a copy of the complaint, but to obtain a judgment of dismissal under section 480 without appearing generally. The course pursued by plaintiff's attorney was proper. The legal efficacy of the demand for the complaint contained in so-called special appearance was no greater than that of a personal request to be responded to as courtesy might dictate. Even if defendant was entitled to a copy of the complaint without a general appearance, it does not follow that it might also move to dismiss the complaint and appeal from an order denying its motion. No action can be taken on a special appearance that does not have for its basis a challenge to the jurisdiction of the court over the person or property of the defendant. No such challenge has as yet been interposed in this case, yet plaintiff is here with his complaint dismissed.

The judgment appealed from should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, CRANE and ANDREWS, JJ., concur.

Judgment reversed, etc.

MUSLUSKY v. LEHIGH VALLEY COAL CO