Stokes v. Schildknecht

83 N.Y.S. 358 | N.Y. App. Div. | 1903

Laughlin, J.:

The action was brought to set aside a transfer of a bank account by the bankrupt to his wife, and to have the money on deposit in her name declared to be the property of the bankrupt. Personal service of the summons was made upon the respondents on the 21st day of March, Í903. On the twenty-sixth day of the same month the bank, which was also a party defendant, obtained an order to show cause. returnable on the first day of April thereafter, for an order permitting it to pay into court the amount of the deposit, less its costs, and for a discontinuance' of the action as against it. On the return day Messrs. Knabe and Butler, by George William Hart, appeared for the respondents. The motion was held until the thirteenth of April, when the respondents appeared in the same manner in opposition, presenting an affidavit of the respondent, John Schildknecht. On the seventeenth day of April the motion was granted, ■but the order was not entered until the twenty-sixth day of May, and it recited , that respondents appeared in opposition by said Knabe and Butler, their attorneys: On the twenty-seventh day of May the respondents obtained an order to show cause why .the plaintiff should not be compelled to serve a copy of the complaint upon Messrs. Knabe and Butler, their attorneys, and why they should not have leave to answer, demur or otherwise move in the .premises. The affidavit upon which the order was granted showed a verbal demand upon the. plaintiff’s attorneys for a copy of the complaint on the twenty-sixth day of May, which was denied upon the ground that respondents were in default. The attorney for the plaintiff presented an affidavit in opposition to the motion, denying that such demand had been made upon him. The respondents have neither served á notice of appearance nor answered nor demurred, and, therefore, have not appeared in the manner "prescribed by section 421 of the Code of Civil Procedure. ' They claim, that their appearance upon the motion made by their codefendant was a sufficient appearance, and doubtless it was for the purpose of giving the court jurisdiction over theta, which, however, it already had by the personal service of the summons. But there was no appearance which gave the plaintiff the names and addresses of the attorneys for the respondents, at least until the affidavit was presented in opposition to the motion on the thirteenth day of April, when the respondents were in default for not having appeared within twenty days after the service of the summons.' Moreover, if the respondents desired a copy of the .complaint, they should have served a written demand within twenty days after the service of the summons, in. accordance with the provisions of section 479 of the Code of Civil Procedure. Even if a verbal demand for a copy of the complaint was made upon the attorney for the plaintiff on the twenty-sixth day of May, he was under no obligation to comply therewith. Where, as here, the summons is served without the complaint, if the appellant desires a copy of the complaint diis remedy is to apply tó the attorney for the plaintiff therefor, in accordance with the practice established by the Code of Civil Procedure (1 Bumsey Pr. [2d ed.] 231, 232-, 235), which may not be disregarded, and an application made to the court instead for a peremptory order requiring the service of the complaint. The respondents having failed to appear and demand a copy of the complaint until after they were in default, they were in no position to require it until by consent or an order of the court their default was opened. Their remedy was to have their default opened and be permitted to serve a demand for a copy of- the complaint, but, ás has been séen, that was not the application or the order they obtained. ‘

It follows, therefore, that the order, should be reversed, with teii dollars costs and disbursements, and the motion denied, with ten dollars costs. ■

Van Brunt, P. J., Patterson, Ingraham and Hatoh, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.