Forbell v. Forbell

274 A.D. 807, 79 N.Y.S.2d 857, 1948 N.Y. App. Div. LEXIS 3453

Opinion

Appeal by defendant from so much of order made in an action for judgment of separation as grants motion of defendant to vacate a judgment for plaintiff upon condition that he appear generally and serve an answer. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The effect of defendant’s application to vacate the judgment, open his default and serve the answer proposed by him and to defend on the merits, constituted a general appearance (Farmer v. National Life Assn., 138 N. Y. 265, 270; Henderson v. Henderson, 247 N. Y. 428, 432-433; Dyker Heights Home for Blind Children v. Stolitzky, 250 App. Div. 229; Ratkowsky v. Ratkowsky, 272 App. Div. 775; Petker v. Rudolph, 168 Misc. 909, affd. 258 App. Div. 1040) and made the condition imposed, that petitioner appear generally, surplusage and unnecessary. Lewis, P. J., Cars-well, Johnston, Adel and Wenzel, JJ., concur.