Schwinger v. Hickox

46 How. Pr. 114, 1873 N.Y. Misc. LEXIS 286

Opinion

Smith, J.,

denied the motion on the ground that the voluntary appearance of the defendants by their attorney was, for all purposes of the action, the equivalent of personal service, and entitled the plaintiff to the costs as adjusted. The case of Macomber agt. The Mayor, &c., of New York (17 Abb. Pr. R., 35), in so far as it holds that a voluntary appearance will not justify a judgment on failure to answer without proof of the actual service of the summons, disapproved. Ho costs allowed, as the question is a new one.