Douglas v. Haberstro

58 How. Pr. 276

• Court: New York Supreme Court
• Decided: November 15, 1879
• Status: Published

Opinion

Daniels, J.

The act of subscribing himself as attorney for the defendant, to the notice of motion, served for the exoneration of the sheriff, from liability as bail, was probably sufficient to constitute an appearance, for the purpose of waiving mere irregularities (Baxter agt. Arnold, 9 How., 445; Kelsey agt. Davis, 15 id., 92; Ayers agt. Western Ins. Co., 48 Barb., 132). But while it may very well have been attended with that result, it was still insufficient to entitle the attorney to notice of other and entirely different proceedings in the action. To require the service of notice of such proceedings, when no demurrer or answer has been served, a formal notice of appearance has been rendered necessary by the provisions of the Code of Civil Procedure (id., secs. 421, 422), and it is quite evident from the affidavits produced on this motion, that no such notice was served on the plaintiff’s attorney at any time. The consequence of that omission is, that the application for judgment, the reference ordered and executed under it, and the judgment afterwards entered upon the report of a referee, were irregular. But, as the defendant swears to merits and excuses his default, he should be let in to defend. The judgment, order and report, must, for that reason alone, be set aside, and the defendant allowed to answer within ten days, on payment of ten dollars costs of opposing the. motion, and the expenses attending the proceedings set aside.

Hots. —Under the old supreme court rules, which are abrogated bisection 431, Code of Civil Procedure, signing “ atty. for deft.,” was an appearance entitling to notice. The new Code has changed the practice. [Ed.