Kerille v. Phœnix Life Insurance

3 Thomp. & Cook 788

Opinion

Mullin, P. J.,

“ By the twelfth section of the judiciary act, the defendant’s appearance in the action must be entered at the same time that the petition is filed, they must be concurrent acts, and if they are not done concurrently, the defendant is not entitled to an order of removal. Conkling’s Tr. 476 ; Redmond v. Russell, 12 Johns. 153.

If serving notice of retainer is equivalent to the entry of appearance, it was not served until the 22d, the next day after the petition was filed. If the actual entry of an appearance was essential, it was not entered until the 22d, and was too late to be in compliance with the statute. The order of the special term must be affirmed, with $10 costs.”

Order affirmed.