17 Misc. 561 | N.Y. App. Term. | 1896
The plaintiff, a resident of the city of Pew York, sued the defendant, a resident of South Carolina, upon two assigned, claims for merchandise sold.and delivered in Maryland. The summons was served upon the defendant personally, without the state, pursuant to an order for such service, and by means of an attachment, wMch was issued against the property of the defendant, and served upon the managing agent, respectively, of the Phoenix Assurance Company, the Imperial Insurance Company, Limited, and' the Royal Insurance Company, the plaintiff sought to reach the debts owing from such companies to the defendant in virtue of their several policies of insurance against loss by fire issued to him for
The notice of motion to set the service of the attachment aside, or to vacate the levy attempted to be made thereunder, was not served until upwards of five months after the attachment was issued. ■ It was subscribed by the attorney and the latter’s office and. post-office address added, but. it did not expressly qualify the defendant’s appearance in the action. Assuming the notice of motion to be a general appearance, the plaintiff’s attorneys, after lapse of the time for service of the defendant’s pleading, entered judgment against the defendant for default in pleading. Thereafter the defendant movéd to vacate the judgment upon the grounds that it was irregularly entered, -that theire was no general appearance for the defendant in the action, and that if the ' notice of motion to set the service of the attachment aside could be construed to be a general appearance, it was unauthorized and not so intended. The motion to vacate the judgment was. denied and the order entered upon the denial was likewise affirmed upon appeal in the court below:
Waiving the effect, of the defendant’s assignment for the benefit of his creditors, and treating him to all intents and purposes as the owner of the several demands attempted to be attached, as the plaintiff’s counsel insists he should be, the service of the attachment, and the attempted levy thereunder, appear, notwithstanding, to have been rightfully. vacated.
The attachment proceeding was dependent for its validity upon the presence of the res, the debt, within the jurisdiction of‘the court, which was; not here the case. The question involved was fully discussed by the Court of Appeals in Douglass v. Phenix Ins. Co., 138 N. Y. 209, where it was explicitly ruled that the
We are referred by counsel for the plaintiff to a number of cases in other jurisdictions which are claimed to be at variance with the ruling above alluded to as to service of process upon an agent Or attorney of a foreign corporation, but, obviously, the Douglass case would be conclusive upon us .even if the. opinion were less persuasive.
We are of the opinion that the service of the defendant’s notice of motion to vacate the service of the attachment, and the attempted levy thereunder, did not constitute a general appearance in the action. We are referred by the counsel for the plaintiff to a number of cases, neither of controlling authority, which are to the effect that service of a notice of motion which does not expressly qualify the party’s appearance is equivalent to a general appearance in the action. The cases alluded to, however, are such as' arose before the present Code of Civil Procedure, and such as followed them without notice of the effect wrought by the Code. It is now provided that if the defendant wishes to appear in the action-he must serve either an express notice'of his appearance or a demurrer or answer. Code Civ. Pro., § 421. The better opinion seems to be that a' general appearance cannot now be effected in any other way: Couch v. Mulhane, 63 How. Pr. 79; Benedict v. Arnoux, 1 Benjamin’s N. Y. Ann. Cases, 407. Expressio uñius est exclusio alterius. Broom’s Maxims (8th Am. ed.), 650; Sutherland Stat. Constr., §§ 326, 327.
Reed v. Chilson, 142 N. Y. 155, and Farmer v. Nat. Life Assn., 138 id. 265, are not contrary to the views above expressed."' In. the Reed case there was a general appearance by the defendant, and in the court’s allusion to special or qualified appearances thetre is no intimation that since the Code of Civil Procedure a notice of motion is more than a" special or qualified appearance. In the Farmer case the decision was not predicated of the fact of a general appearance by the defendant, but it was ruled that the defendant was estopped from denying that it had generally appeared and submitted to the jurisdiction of the court because it, "had applied for and availed itself of relief to which it was entitled, only after 'a general appearance in the action.
■ The order Vacating the service of the attachment, and the levy thereunder, and the order affirming such, order, are affirmed, with costs.
The order denying the motion to vacate the judgment, and the, order aifirming such order, are reversed, with costs, and the judgment is vacated, with costs. ...
Daly, P. J,, and MoAdam, J., concur.
Order vacating service of attachment affirmed, with costs.
Order denying motion to vacate judgment reversed, with costs, and judgment vacated, with costs. '