Valentine v. Myers' Sanitary Depot

New York Supreme Court

Valentine v. Myers' Sanitary Depot

43 N.Y. Sup. Ct. 201

DecidedMay 15, 1885

StatusPublished

This text of 43 N.Y. Sup. Ct. 201 (Valentine v. Myers' Sanitary Depot) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Valentine v. Myers' Sanitary Depot, 43 N.Y. Sup. Ct. 201 (N.Y. Super. Ct. 1885).

Pincite

Opinion

Barnard, JP. J.:

The defendant, “ Myers’ Sanitary Depot,” was not served with the summons and complaint in this action. Having in some way become possessed of a copy of the complaint which had been served upon the defendant Myers, it caused a motion to be made to make the complaint more definite and certain. It gave no notice of appearance with the notice of motion. This notice was signed by an attorney of the court. Before the present Code a notice of motion was held in many cases to be an appearance. Under these decisions there grew up a practice by which a notice of motion was made a special appearance, and only for the purposes of the motion. The Code (§ 421) now provides that an appearance “must be made” by notice of appearance, copy demurrer or copy answer. Before ah appearance it has always been right to discontinue without costs. Under this section there was no formal appearance. and the order of discontinuance was properly granted ex parte, although it was made after the service of the notice of motion upon the plaintiff’s attorney. (Couch v. Mulhane, 63 How., 79; Douglas v. Haberstro, 8 Abb. N. C., 230.)

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.

Free access — add to your briefcase to read the full text and ask questions with AI

Barnard, JP. J.:

The defendant, “ Myers’ Sanitary Depot,” was not served with the summons and complaint in this action. Having in some way become possessed of a copy of the complaint which had been served upon the defendant Myers, it caused a motion to be made to make the complaint more definite and certain. It gave no notice of appearance with the notice of motion. This notice was signed by an attorney of the court. Before the present Code a notice of motion was held in many cases to be an appearance. Under these decisions there grew up a practice by which a notice of motion was made a special appearance, and only for the purposes of the motion. The Code (§ 421) now provides that an appearance “must be made” by notice of appearance, copy demurrer or copy answer. Before ah appearance it has always been right to discontinue without costs. Under this section there was no formal appearance. and the order of discontinuance was properly granted ex parte, although it was made after the service of the notice of motion upon the plaintiff’s attorney. (Couch v. Mulhane, 63 How., 79; Douglas v. Haberstro, 8 Abb. N. C., 230.)

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.

Cite This Page — Counsel Stack

Bluebook (online)

43 N.Y. Sup. Ct. 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-myers-sanitary-depot-nysupct-1885.

Opinion

Related

Cite This Page — Counsel Stack