98 Misc. 377 | N.Y. Sup. Ct. | 1917
Separate motions have been made by two defendants to set aside the service of the summonses. The motions are based upon the fact that the summonses were subscribed by the plaintiff in his own name and it is admitted that he is not an attorney at
The summons is a mandate of the court (Code Civ.
Although the provisions of the Code of Civil Procedure referred to have existed for nearly half- a century, they seem not to have been passed upon by the courts except in one case, at least that is the only instance to which the court’s attention has been called or which it has been able to find. And in that case a similar application was granted. Johnston v. Winter, 7 Alb. L. J. 135. Prior to the amendment which required the summons to be subscribed by the plaintiff’s attorney and at a time when it could properly be subscribed by the plaintiff himself, it was held that a subscription •in the name of the plaintiff by some one as his agent was not justified and was improper. Weare v. Slocum, 3 How. Pr. 397.
Plaintiff further claims that even if the defendants’ contention is sound it will not avail them for the reason that they have waived the right to make the objection. The defendant Leo Bovere answered the complaint through an attorney and later served an amended answer setting up a counterclaim, and as to him the case is now at issue, awaiting trial. There is no doubt that the court has jurisdiction of the subject matter of the action, and failure to acquire jurisdiction of the person of the defendant may be waived by appearing voluntarily or by pleading which is the equivalent of an appearance. Code Civ. Pro. § 421; Reed v. Chilson, 142 N. Y. 152; Farmer v. National Life Assn., 138
The situation as to Ray B. Rovere, the other moving defendant, is different. After she was in default for failing to plead, but under the assumption that her time had not expired, she obtained an order extending her time. These papers were indorsed with the name and address of an attorney who represented her; within the time provided in the order she served an answer subscribed by her attorney, but this was returned on the ground that it was not served in time and that the order extending the time was. a nullity because it was not made until after the time had expired; thereafter through her attorney she made a motion to compel the plaintiff to accept her answer, and before that motion was heard her attorney signed a stipulation withdrawing that motion and consenting that the order extending the time to answer be vacated; these papers were all signed or indorsed in the name of this defendant’s attorney, as attorney for her. No notice of appearance was ever served by this defendant and her situation now is that she is in default. The fact that she served an answer which was returned because not served in time leaves the situation the same as though the answer had never been served. If the making of the various motions and the signing of the stipulations constituted an appearance in the action, then this defendant has waived the right to object to the irregularity in' the subscription to. the summons. If they do not amount to an appearance, then she has not waived that right.
The Code prescribes that a defendant’s appearance “ must be made ” by serving either a notice of appearance or a copy of a pleading (§ 421). Before the adoption of this section it was held that the signing
This defendant has not waived her right to raise the question of the form of the summons, and so her motion must be granted. The motion of defendant Leo Rovere is denied. If there is any question of amendment or the terms thereof as to defendant Ray B. Rovere (Weare v. Slocum, 3 How. Pr 397) that can be considered on the settlement of the orders to be entered, notice of which should be given.
Ordered accordingly.