Horter v. De Mesa

196 A.D. 462 | N.Y. App. Div. | 1921

Dowling, J.:

The sole ground urged for the opening of defendant’s default herein was that the party plaintiff had no right to subscribe the summons in the action but that the same must be subscribed by an attorney. (See Code Civ. Proc. § 417.) As the effect of such a holding would be to determine that a repeal by implication had been made of the provisions of the statute by which a party has the right to prosecute or defend in person, such a construction should not be favored, especially in view of the provisions of section 55 of the Code of Civil Procedure which confer the right upon every party to a civil action, who is of full age, to prosecute or defend the same in person, and which make every provision of the Code relating to the conduct of an action, wherein the attorney for the party is mentioned, applicable to a party prosecuting or defending in person.

We are of the opinion, therefore, that the subscription of the summons herein by the plaintiff in person was sufficient under the Code.

No other ground was suggested for the opening of the defendant’s default and we cannot now pass upon the question of whether a proper case can be made out by him for the exercise of judicial discretion by permitting him to come in and defend.

The order appealed from will, -therefore, be affirmed, with ten dollars costs and disbursements, but with leave to defendant to make a motion to open his default upon proper papers.

Clarke, P. J., Smith, Page and Greenbaum, JJ., concur.

Order affirmed, with ten dollars costs and disbursements, with leave to defendant on payment of said costs to move at Special Term to open default upon proper papers.