Jaworower v. Rovere

177 A.D. 740, 164 N.Y.S. 515, 1917 N.Y. App. Div. LEXIS 5763

Opinion

Per Curiam:

This appellant had been served with a summons subscribed in person by the plaintiff, who was not an attorney at law. ■ After obtaining time to plead, the appellant, through his attorney, served an answer, and then an amended answer with a counterclaim, thus becoming also an actor in the cause. Plaintiff being then represented by attorneys of record, served a reply. Appellant furnished a bill of particulars, with a further bill of particulars as demanded; and thereafter admitted service of plaintiff’s notice of trial. After such appearance, and interposing his counterclaim, defendant’s motion to vacate the service and dismiss the complaint was rightly denied. Defendant was in court by virtue of his unqualified appearance, independently of the summons. (Code Civ. Proc. § 424; Matter of McLean, 138 N. Y. 158; Reed v. Chilson, 142 id. 152; Russell v. Craig, 10 Colo. App. 428.)

Whether the summons thus subscribed complied with the requirements of the Code of Civil Procedure (§ 417) is, therefore, unnecessary to be here decided.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.