Benedict v. Arnoux

38 N.Y.S. 882 | N.Y. Sup. Ct. | 1895

ANDREWS, J.

Since the adoption of the Code of Civil Pro-

cedure, it has been held in a number of cases that a general appearance of a defendant in an action cannot be made in any manner other than that prescribed by section 421 of that Code.¹ Couch v. Mulhane, 63 How. Prac. 79, Arnoux, J.; Douglas v. Haberstro, 8 Abb. N. C. 230; Valentine v. Myers’ Sanitary Depot, 36 Hun, 201. Most of the cases referred to by plaintiffs’ counsel, in which it was held that obtaining an extension of time to answer, or serving a notice of motion, was an appearance, or equivalent to it, were decided under the old Code of Procedure, and are not applicable. So far as the actual decisions went, neither Krause v. Averill, 4 Civ. Proc. R. 410, nor Davis v. Jones, 8 Civ. Proc. R. 43, appears to me to conflict with the cases above cited; but, if either does, it cannot be considered as a controlling authority.

It follows that the motion to compel plaintiffs’ attorneys to accept the answer of Hannah Campbell must be granted, with §10 costs to her, to abide the event, and that the motion for judgment must be denied, with §10 costs to said Hannah Campbell, and §10 costs to the defendant executors; such costs, in each case, to abide the event of the action.

1 Code Civ. Proc. § 421, provides that “the defendant’s appearance must be made by serving upon the plaintiff’s attorney within twenty days after service of the summons, exclusive of the day of service of notice of appearance, or a copy of a demurrer, or of an answer.”