Bristol v. Chapman

New York Supreme Court

Bristol v. Chapman

34 How. Pr. 140

CourtNew York Supreme Court

DecidedJune 15, 1867

StatusPublished

Cited by2 cases

This text of 34 How. Pr. 140 (Bristol v. Chapman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bristol v. Chapman, 34 How. Pr. 140 (N.Y. Super. Ct. 1867).

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Opinion

By the court, Morgan, J.

The defendant, without having' served a notice of retainer, walked into the court room in New York city, while Justice Barnard was holding a special term, and without notice to the plaintiff’s attorneys, caused his appearance to be entered in the minutes of the court, presented his petition for the removal of this action, under section 12 of the judiciary act of 1798, and obtained an ex parte order for such removal.

The place of trial is Oneida county;. and upon motion to the special term held in Jefferson county, the order of Justice Barnard was vacated. The appeal is from the order vacating the original order of removal. .

I have.looked into the authorities, and without citing them, I think the order of Justice Barnard was irregular, and cannot be sustained for the following reasons :

1. I think the plaintiff’s attorneys were entitled to notice of the application.

2. I think the entry of the defendant’s appearance was irregular. The appearance contemplated by the act of congress, is doubtless an appearance to be entered in the minutes of the court; but the rules of this court have prescribed the manner in which the defendant’s may appear, and what shall be deemed an appearance. This is by service of notice of retainer. On filing such notice, the defendant may, doubtless, enter his appearance in the proper clerk’s office, and at the same time file his petition for the removal of the cause. Having filed his petition, he may then apply to the' court at special term for an order of removal; and, if necessary, obtain a stay of the plaintiff’s proceedings until his application can be heard.

But whatever may be the correct practice in respect to entering the defendant’s appearance, there is no difficulty in giving notice of the application at the same time the defend[142]*142ant enters and gives notice of his appearance. (Redmond agt. Russell, 12 Johns. R. 153; Conkling’s Treatise, 3d ed.. 479, note ; Disbrow agt. Driggs, 8 Abb. 305, note.)

As notice was .necessary in this case, the order of Justice Barnard was not only irregular, but without authority; the place of trial being in Oneida county. (Code of Procedure, § 401, sub. 4.)

The order appealed from should be affirmed, with $10 costs.

Order affirmed.

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By the court, Morgan, J.

The defendant, without having' served a notice of retainer, walked into the court room in New York city, while Justice Barnard was holding a special term, and without notice to the plaintiff’s attorneys, caused his appearance to be entered in the minutes of the court, presented his petition for the removal of this action, under section 12 of the judiciary act of 1798, and obtained an ex parte order for such removal.

The place of trial is Oneida county;. and upon motion to the special term held in Jefferson county, the order of Justice Barnard was vacated. The appeal is from the order vacating the original order of removal. .

I have.looked into the authorities, and without citing them, I think the order of Justice Barnard was irregular, and cannot be sustained for the following reasons :

1. I think the plaintiff’s attorneys were entitled to notice of the application.

2. I think the entry of the defendant’s appearance was irregular. The appearance contemplated by the act of congress, is doubtless an appearance to be entered in the minutes of the court; but the rules of this court have prescribed the manner in which the defendant’s may appear, and what shall be deemed an appearance. This is by service of notice of retainer. On filing such notice, the defendant may, doubtless, enter his appearance in the proper clerk’s office, and at the same time file his petition for the removal of the cause. Having filed his petition, he may then apply to the' court at special term for an order of removal; and, if necessary, obtain a stay of the plaintiff’s proceedings until his application can be heard.

But whatever may be the correct practice in respect to entering the defendant’s appearance, there is no difficulty in giving notice of the application at the same time the defend[142]*142ant enters and gives notice of his appearance. (Redmond agt. Russell, 12 Johns. R. 153; Conkling’s Treatise, 3d ed.. 479, note ; Disbrow agt. Driggs, 8 Abb. 305, note.)

As notice was .necessary in this case, the order of Justice Barnard was not only irregular, but without authority; the place of trial being in Oneida county. (Code of Procedure, § 401, sub. 4.)

The order appealed from should be affirmed, with $10 costs.

Order affirmed.

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