59 N.Y.S. 426 | N.Y. Sup. Ct. | 1899
The plaintiffs in this action, on May 8, 1899, filed in the office of the clerk of this court a duly verified complaint, asking, among other things, that they be adjudged to have a lien for $'500 on certain real property in this county belonging to the defendant Fox; that said lien be foreclosed, the property sold, and the amount claimed paid out of the proceeds. On the same day they also filed in the office of the clerk a notice of pendency of the action. After the lapse of fourteen days the defendants caused théir attorney to serve upon the attorney for the plaintiffs a general notice of appearance in the action, and thereupon an answer and a notice of trial of the issues thus raised, for the June term, were also served. All of these papers, including the notice of appearance, were immediately returned to the attorney for the defendants, on the ground that no summons had as yet been served, and that the defendants had no right to enter any appearance, or to take any steps whatsoever with respect'to the action until they had been brought in by the service of process. The attorney for the defendants now moves to compel the plaintiffs’ attorney to accept said papers. I have been unable to find any authority upon the question thus involved where the facts are similar to those which exist here. There are cases, however, holding that a voluntary appearance in an action, before- the service of process, may be made, when it is essential or proper for the defendant to take action, in- order to protect his interests when affected by some step which the plaintiffs have taken in the actiom For instance, it has been held that where a writ of replevin has been obtained, and the property of the defendant taken thereunder, or where an order of arrest had been issued, and in other cases, the defendant may voluntarily appear for the purpose of protecting himself and his interests. Clinton v. King, 3 How. Pr. 55; Wellington v. Claason, 9 Abb. Pr. 175; Merkee v. City of Rochester, 13 Hun, 157, 162; Higgins v. Rockwell, 2 Duer, 650. In the latter case, the learned judge says (p. 652): “ I think the plaintiff is wrong in the position, that a person named as -defendant, and against whom personally a judgment is prayed, has no right
Motion granted, with $10 costs.