Cutting v. Jessmer

101 A.D. 283, 91 N.Y.S. 658

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1905
• Status: Published

Opinion

Chase, J.:

Daniels, while acting for the defendant in the Justice’s Court, did so as an attorney in fact, and liis authority as such ceased when the case was finally submitted. (McLear v. Reynolds, 76 App. Div. 267; Beardsley v. Pope, 88 Hun, 560.)

As soon as the case was pending in the County Court the respondent had a right to appear therein generally or specially by an attorney at law and a general or special appearance in an action by an attorney at law is presumptive evidence of the authority of the attorney to so appear. (Brown v. Nichols, 42 N. Y. 26; Wing v. Rionda, 125 id. 678.)

It is not claimed by the respondent that Daniels served the offer of judgment in the County Court as his attorney in fact. He stands upon the offer of judgment made by Daniels as his attorney at law in the County Court, and insists that from the time the appeal was perfected the action was pending in the. County Court, where anything that he could do in person he could lawfully do by an attorney at law. The appellant calls our attention to section 3071 of the Code of Civil Procedure which provides: “ Upon an appeal provided. for in this article

* after the expiration of ten days from the time of filing the justice’s return the action is deemed an action at issue in the appellate court,” and insists that as the action was not at issue in the County Court when the offer of judgment was made, the respondent could, not appear in the action by an attorney at law-either generally or for a special purpose. ' We think the appellant is mistaken in his contention. When an appeal is perfected even before a return' is filed the case is removed 'from the' subordinate court. (Adams v. Fox, 27 N. Y. 640.) After an appeal is perfected and a new trial is demanded in the-appellate court, there áre several steps which must dr may be taken before the expiration of ten days after the return is filed hy the justice. An offer to allow judgment'to, be'rendered in the appellate court for a specified sum may be made before the return is filed, and within ten days after' such offer of judgment is made the party upon whom it is served may accept such offer of judgment. (Code Oiv; Proc, § 3070.) . It may be necessary before the return is filed to apply to the appellate court to supply some omission :or obtain ■ some amendment relating to the appeal. (Id. § 3049.) It may be necessary to obtain a special order in the appellate court in regard to the - return. (Id. § 3053.) It may be necessary to compel a return by attachment issued from the appellate court, Or if the return is defective it may' be necessary to apply to the appellate court to compel a further or amended return. (Id. § 3055.) It .may be necessary to require a- ' justification of the sureties on the undertaking served with the notice of appeal. (Id. §§ 1335,- 3050.) In Case the justice dies or for any other reason cannot make the return", á proceeding may be necessary in the appellate court as to the proceeding before the justice. (Id. § 3056.) A further offer of judgrhent is allowed after'the issue is joined in the appellate court. (Id., § 3072.) The pleadings in the County Court are the same as'in the Justice’s Court and the Leg-, islature by said section 3071 has simply fixed a time when the action shall be deemed at issue in the appellate court for certainty in deter-mining wlieti the offer of judgment under said section- 3072 can be -made and-also when a notice of trial' can be served in the appellate • court. There is no apparent reaspn for the suggestion that the- statute intends that, between the' service of notice 'of appeal and a time ten days after the return is filed by the justice, the action shall be in. the anomalous position- óf háving been removed from the Justice’s Court, and yet hot sufficiently existing in the appellate court so that the respondent can he represented therein by an attorney at law. That an attorney at law can represent either party in the appellate court from the time the notice of appeal is served appears from the fact that all papers in the action thereafter are designated in the appellate court, and in an appeal to the County Court from the Justice’s Court the notice of appeal can be subscribed by the appellant “ or by his attorney in the appellate court.” (Id. § 3046.), This section, expressly recognizes that the appellant may have an attorney in the appellate court from the signing of the notice of appeal. Section 3070 of the statute relating to an offer of judgment before the return is filed expressly provides that either party may “ serve upon the adverse party or upon his attorney a written offer to allow judgment.” The same section provides that in accepting such an offer the party accepting the same may serve his acceptance “upon the party making the same or upon Ms attorney.” We conclude, therefore, that section 3071 of the Code of Civil Procedure, prescribing the time when issue is deemed to be joined in the appellate court, should be construed to relate to the issue only and in no way to affect the time when the action shall be deemed pending in the County Court. The action is no less in the County Court-after the notice of appeal is served and before the action is at issue in the County Court, than is an action in the Supreme Court after the summons is served and before an issue is joined by the service of an answer or demurrer. A party may appear specially in an action in a manner other than as specified for a general appearance by a defendant in section 421 of the Code of Civil Procedure. (Paine Lumber Co. v. Galbraith, 38 App. Div. 68; Couch v. Mulhane, 63 How. Pr. 79; Wood v. Furtick, 17 Misc. Rep. 561; Sherman v. Shisler, 6 id. 203.)

The provision of section 740 of the' Code of Civil Procedure providing that an affidavit shall accompany an offer of judgment subscribed by an attorney only applies fo an offer made as prescribed in the sections of the Code of Civil Procedure therein mentioned.

The order of the County Court should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Code Civ. Proc. chap. 19, tit. 8, art. 3.— [Rep.