James L. Montgomery, Respondent, v. Robert Nathaniel Boyd and Others, Appellants, Impleaded with Others, Defendants

James L. Montgomery, Respondent, v. Robert Nathaniel Boyd and Others, Appellants, Impleaded with Others, Defendants. Order for service of a summons by publication — objection that the complaint does not state a cause of action. An order for the service of a summons by publication should not be vacated upon the ground that the complaint does not state a cause of action, except in a case where, from a hare inspection of the complaint, it can he seen that the complaint is frivolous. Appeal by the defendants, Robert Nathaniel Boyd and others, 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 20th day of July, 1901, denying said defendants’ motion to vacate an order theretofore granted in the action directing the publication of the summons. Edward O. Perkins, for the appellants. Stephen E. OUn, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The defendants, appearing only for the purpose of moving to vacate an order for the service of the defendants by publication, attack the order upon the ground that the complaint does not state a cause of action against them. On an appeal in this action from an order granting leave to amend the complaint this court held that, in view of the fact that the questions involved in this action had not been definitely passed on by the Court of Appeals, they should not be determined upon a motion; but it was left to the defendants to raise the questions by demurrer or answer so that eventually the question could be brought before the appellate court in a regular way. I think that the same disposition should be made of the appeal. The question as to the right of the plaintiff to recover in the action should not be determined upon a motion of this kind except in a case where, from a bare inspection of the complaint, it can be seen that there is no cause of action alleged, and, consequently, that the complaint is frivolous. Whether or not the action in its present form can be maintained is not so clear as to justify us in saying that the action is frivolous. These defendants by demurring to the complaint or by answer can have the question properly determined, and we should not, on a motion to set aside the service of the summons, preclude the plaintiff from such a course as would enable him to present the question involved to the Court of Appeals. The court, therefore, expressing no opinion upon the questions argued, refuses to determine the questions upon the decision of this motion. The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.