Manwaring v. Lippincott

65 N.Y.S. 428 | N.Y. App. Div. | 1900

Ingraham, J.:

The action was brought to partition certain real property, the controlling question being the validity of the will of one Mabel Westerman. The appellant was made a party defendant as executor of and trustee under the said will which, from the papers, appears to have devised the real estate in question to him in trust. The summons and complaint were served upon the appellant on July 14,. 1899. At that time the will had been offered for probate but there had been objections filed thereto which were undetermined. The appellant failed to appear and answer within twenty days after the service of the summons and complaint. On December 5, 1899, the -surrogate admitted the will to probate, and oil January 4, 1900,. the appellant duly qualified and letters were issued to him. On December 18, 1899, the appellant served a notice of appearance on the plaintiff’s attorney, which the plaintiff’s attorney returned upon the ground that the defendant was in default and the paper was served too late. On January 26, 1900, an order was granted requiring the plaintiff to show cause why the notice of appearance should not be received by the plaintiff, which motion, was denied. On the 27th day of January, 1900, the appellant also obtained an order requiring the respondent to show cause why the appellant should not be allowed to appear and answer the complaint, which motion was also denied. Subsequently an application was made to resettle these orders, which was denied, and the appellant appeals from the orders denying these three motions.

The notice of appeal clearly brings tip for review each of the three orders; There is no objection to including in one notice of appeal several interlocutory orders made in an action, and when- the notice of appeal clearly indicates that it is the intention to review an order therein described such order is before the appellate court for review.

The refusal of the plaintiff’s- attorney to accept the notice of appearance served on him by the defendant was not justified. The defendant has the right to appear at any time before the entry of final judgment and such appearance gives him the right to notice of all subsequent proceedings in the action. The fact that his time to answer had expired, and he was thus in default in the service of an answer, does not prevent him from appearing in the action. The order denying the appellant’s motion to compel the respondent to accept his notice of appearance must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

We think, also, that the default of the appellant should have been opened and he be allowed to serve his answer, a copy of which was annexed to the moving papers. The action relating to real estate, the probate of the will by the surrogate is only prima facie evidence of its due execution. If the will was valid, the title to the real property therein disposed of vested in the appellant as trustee, and he was a proper and necessary party defendant. The devise to defendant being in trust, it was his duty to defend- his title, and to establish this will; and while he was in default in not appearing and answering the complaint within the time allowed, the fact that he misconceived his duty, in considering that he was under no obligation to answer until .the will was admitted to, probate, would justify the court in opening.the default. The respondent seeks to sustain the order because of the delay in making this motion. The appellant, however, did not qualify as executor, until January 5, 1900, and the motion was made on the twenty-seventh day of the same month. We do not think that this is such a delay as should deprive the defendant of the opportunity of defending the action'. As it appears that .the action has been referred to a referee, this order should be granted upon the condition of appellant’s paying to the plaintiff’s attorney the costs, after notice of trial, and ten dollars costs of opposing this motion, stipulating that the issue raised by this answer should be referred to the same referee to hear and determine, all ’evidence taken before the referee prior to the service of the answer to stand as evidence in the case, the appellant, however, to have the right, to recall the witnesses examined for cross-examination, and to move to strike out any testimony token in his absence which may be incompetent, and to introduce such evidence as may be pertinent to the issues. ,

The order denying the appellant’s motion for leave to answer should, therefore, be reversed and the motion granted upon the terms before indicated, without costs of this appeal. The appellant also appeals from the order denying- a motion to resettle the order. As there is no right to appeal from such an order, that appeal must be dismissed, with ten dollars costs.

Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.

Order reversed and motion granted upon the terms indicated in opinion, without costs. Appeal from order denying motion to resettle order dismissed, with ten dollars costs.