Appellate Division of the Supreme Court of New York, 1975

Mrwik v. Mrwik

Mrwik v. Mrwik
Appellate Division of the Supreme Court of New York · Decided September 30, 1975
49 A.D.2d 750
Mrwik v. Mrwik

Opinion of the Court

In a matrimonial action in which the plaintiff wife was granted a judgment of divorce, she appeals from an order of the Supreme Court, Queens County, *751dated March 17, 1975, which, inter alia, vacated the said judgment and dismissed the action. Order reversed, with $20 costs and disbursements, and matter remanded to Special Term for the making of a determination on the present record as to whether defendant was actually served with process. An improperly executed affidavit of service is a mere irregularity and not a jurisdictional defect (Lambert v Lambert, 270 NY 422, 427). The crucial question is whether or not defendant was in fact served with process. Special Term, which saw and heard the witnesses is best able to answer such question. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.

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