Majority
p. 454ASINARI v. VOLKENING. N. Y. Supreme Court, First Department; Chambers, June, 1877.
Headnote
Answer.—Foreclosure.—Practice.—Order to Show Cause.— Service op Order on Attorney.—Section 797 op Code op Civ. Pro.An cider to show cause, if made by a judge out of court, and returnable in less than two days, is irregular if it contains a stay
p. 455
of proceedings of sale under a judgment in partition or fore" closure.
Service of an answer by leaving it in the office of plaintiffs attorney on the last day to answer, after the office is closed and all have left • for the day, is insufficient under section 797 of the Code of Civ. Pro., and it may be returned and judgment for want of an answer taken.
On a motion to vacate, noticed on the ground of irregularity merely, the mover is not entitled to appeal to the favor of the court on the merits. '
Motion by defendant to vacate a judgment of foreclosure for irregularity.
Helena L. Gillender Asinari, Hester E. Trotter, and Mary H. Mahan, in April, 1877, began separate actions against Henry L. Volkening, Ludwig (1. Gloeckner and others, to foreclose various mortgages made by Volkening, amounting to about §43,000, on property situated on Fourth avenue and Sixty-eighth street, in New York city.
The summons and complaint were served on the defendant Gloeckner, the owner of the fee, on April 19, 1877. On May 9, 1877, that being the last day to answer, his attorney obtained an order giving him twenty days further time to serve his answer.
This order was found in the office of the plaintiff’s attorneys the next morning, having in some way been left there after the office was closed, and all its occupants had left for the previous day. It was immediately returned with an indorsement thereon that under section 797 of the Code of Civil Procedure, it should have been served by leaving it at the residence of one of the plaintiff’s attorneys. Plaintiff’s attorneys, however, treated this as an appearance in the action, and gave Gloeckner’s attorney notice of application for appointment of referee to compute, and for judgment of foreclosure, which was. afterwards rendered for failure of defendants to answer. Thereafter, and on May 35, 1877, an order was granted by Mr. Justice Damels for
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the plaintiffs to show cause on the 29th of the same month, why the defendant Gloeckner should not be -permitted to serve his answer, and all proceedings of the plaintiff had since the granting of the order extending the time to answer should not be vacated as irregular, the said defendant’s time to answer not having expired. This order also contained a stay of proceedings. It was dismissed by default of defendant’s counsel, with $10 costs, and an order entered to that effect on June 7, 1877.
Gloeckner’s attorney having obtained other counsel, an order was granted by Mr. Justice Donohue on June 13, for the plaintiffs to show cause on the next day, why the order of June 7 should not be heard. This order stated that the reason the order to show cause was applied for, was because the sale of said property was advertised for June 16. It also contained a stay of proceedings.
Henry C. Denison, (John J. Reilly, attorney), for the motion.
Augustus T. Gillender, opposed.,
The motions are still irregular, in that there was a stay of proceedings in the order to show cause, which, under the rule, could only be granted on two days’ notice.[1] But further, the motion was not to be let in upon the merits and upon terms, but strictly to vacate the proceedings for irregularity. How, there was no irregularity, as the order extending time to answer was not properly served, and was properly returned. Then the motion to vacate was dismissed by default, with costs, and these costs were not paid. The motion to open that motion default ought
* Rule 81. “ No order to stay a sale under a judgment in partition, or for tlxe foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the. plaintiff’s attorney.”
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not to be granted to permit a motion to vacate for irregularity. It would have been otherwise, perhaps, if there had been in the present order to show cause an appeal to the favor on the merits of the cause. But, although that was argued before me, it was not embraced in the order to show cause, and is therefore not up. The motion must therefore be denied, with $10 costs.