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Drucker v. McCallum

21 Abb. N. Cas. 209 Court N. Y. City Court, Special Term; English

Delivered by Pitshke, J.

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p. 209
DRUCKER v. McCALLUM.
N. Y. City Court, Special Term;
February, 1888.

Headnote

Pleading : effect of omission of attorney to add office address.] An answer from which the subscription- of the attorney’s address is omitted is invalid, and will not prevent the entry of judgment by the plaintiff as soon as the time to answer has expired; even although such answer has not been returned at the time of entry of judgment, but is returned subsequently, and within twenty-four hours after its service.
-Motion to vacate and set aside the judgment entered against the defendants and for leave to answer.
This action, brought by Morris J. Drucker against Mary McCallum and Charles B. Richards, was commenced by the
p. 210
sei-vice of summons and complaint on the defendant, Mary McCallum, on February 14,1888. An answer was interposed on her behalf on February 20, 1888, which was the last day to answer, between the hours of five and six o’clock in the afternoon, as appears by the affidavit of the defendant’s attorney, at which time, he further states, there was no one present in the office of the plaintiff’s attorney, and the office door was locked. The attorney for Mary McCallum omitted, however, to add to his subscription to the answer his office address, as required by Code Civ. Pro. § 421.
On the morning of February 21, 1888, the plaintiff entered judgment by default, and in the afternoon of the same day and within twenty-four hours after its receipt, returned the defendant’s answer, specifying among other objections thereto, that the office address of the defendant’s attorney was omitted after the attorney’s signature.
The defendant then moved that the judgment entered upon the alleged default be vacated, and that she have leave to answer.
Watson W. Moore, for the motion.
Hastings de Gleason, opposed.

Even presuming the non-addition of the ¡address to the attorney’s own subscription on the pleading .or appearance (Code, § 421) is amendable (Wiggins v. Richmond, 58 How. Pr. 376 ; Evans v. Backer, 101 N. Y. 289 ; but see Osborn v. McClaskey, 55 How. Pr. 345 ; Kelly v. Sheehan, 76 N. Y. 325 ), still on morning of February 21, no valid answer existed in the cause, and nothing was then in the way of the plaintiff as regards entering judgment.[1]

* In De Witt v. Simons, 5 Weekly Dig. 307 (N. Y. City Ct., Sp. T., 1877), under a similar neglect to comply with the rule of court as to folioing, it was held that an unfolioed answer was good, unless returned within twenty-four hours after its service, and a judgment as for want of an- answer, entered after service of such answer, and before its return, is irregular.

p. 211
Only by letting twenty-four hours pass without returning the paper served would this right to enter judgment be waived. Plaintiff committed no such waiver herein, and the judgment is therefore regularly taken. Motion must be wholly denied, with costs, except that defendant’s default will be opened (their proposed answer being before me) and a proper answer allowed to be served herein, on payment of taxed costs in judgment, and $10 motion costs. Judgment and levy to stand as security.

Ordered accordingly.

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